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BRIEFING AND NEW REPORT: Rule of Lawyers: How the ECHR is Hampering Action on Migration
Event: Launch of new report and analysis
Theme: Rule of Lawyers: How the ECHR is Hampering Action on Migration
Date & Time: Wednesday 24th September 2025, 18:30- 20:00
Location: Central Brussels
Register to attend here
- Date & Time: Wednesday 24th September 2025, 18:30- 20:00
- Location: Central Brussels
- Speakers:
- Marc Bossuyt - Professor emeritus of International Law, University of Antwerp; former Chairperson of the UN Commission on Human Rights
- Luke Gittos - Lawyer; columnist, Spiked; author of Human Rights – Illusory Freedom
- Dr. Bernadett Petri - Ministerial Commissioner for the Coordination of Direct EU Funds
Link to full report here
Summary of report findings
A new report to be released tonight explains how the European Court of Human Rights (ECtHR) has become an "increasingly political body", actively undermining the sovereignty of European nations and paralyzing elected governments' efforts to control illegal migration.
The report concludes that the ECtHR has "stretched its tentacles ever further into national migration policy", narrowing the democratic space available for politicians who were elected to fulfil their public mandate of controlling migration.
"Sovereignty is being reduced to a permission slip. Time and again, elected ministers have their hands tied by a court that believes it sits, by definition, above democratically elected leaders. This politics of workarounds must end," states the report.
Explaining the Four Pillars of Judicial Overreach
The strategic paralysis inflicted upon European leaders hinges on four decisive legal innovations, which amount to an "incredible power-grab" by the Strasbourg court:
- The Instant Veto (Rule 39): Through an internal mechanism known as Rule 39, the Court issues urgent, pre-court orders- often dictates from a single judge- that can "freeze entire programmes". This was demonstrated when a ruling just hours before take-off "grounded the plane" and imposed a "de facto veto on a primary ministerial policy" against the United Kingdom’s flagship Rwanda flight.
- The Criminals' Catch-All (Article 8): The "Right to respect for private and family life" (Article 8) has been expanded into a notorious "catch-all provision frustrating the deportation of illegal immigrants". Despite this right being "extremely narrow" in the original text, the Court has used it to protect drug criminals, burglars, violent criminals, and even rapists, simply because they established social bonds on national territory.
- The Outlawing of Borders (Extraterritorial Reach): Concepts like extraterritorial reach- demonstrated in the Hirsi Jamaa case- have been used to effectively outlaw pushbacks and border enforcement. The ECtHR "effectively demands that all potential entrants must be allowed to reach the border and make their claim", severely hampering attempts by countries like Italy, Hungary, and Poland to defend their national borders.
- The Total Overriding of Security (Non-Refoulement): Through the progressive expansion of the doctrine of "non-refoulement”- a principle "not a provision in the text of the Convention” itself- the Court now forbids returns even when individuals pose a major national security risk. This requires burdensome "individualised assessment" for every case, making swift removal of dangerous migrants or failed asylum seekers nearly impossible.
All of these are underpinned by what the report calls “the lie of the Living Instrument"
This relentless expansion is underpinned by the radical but rarely criticized concept of the ECHR as a "living instrument". The report warns that in practise this means that the Convention is constantly re-interpreted in light of today’s political fashions, giving wide room for activist judges to impose their will on member-states.
The report shows how the ECtHR reserves for itself the right to progressively increase the scope of rights through the dictates of unelected judges. This approach places the court above the political arena. If Europe is to have an expanded framework of human rights, it must be "argued for and won politically, not determined by the dictate of unelected judges".
Call to Action: Major change is Necessary
The constitutional collision course is now out in the open. In May 2025, nine European leaders questioned the role of the Court in hampering action on illegal migration, demonstrating the growing diplomatic friction.
Many different options have been proposed - from reform of the convention to ensuring that judges stick more closely to the word of the Articles. Different countries may take different approaches, but only radical action to curb the role of activist judges (at home and in Strasbourg), restore the original meaning of the ECHR, and send a clear message that national democracy takes precedence over unelected judges will be enough to restore sensible controls over migration.
The choice is stark: Absent fundamental reform, sovereign states will be forced to choose between managing migration effectively by legislating around Strasbourg, or “openly resisting” its mandates, leading to constitutional and diplomatic chaos.
The time for judges to impose expansive new rights not won in the political arena is over.
