European Court of Human Rights criticized for its case law on immigration

The European Court in Strasbourg has been the subject of increasingly fierce criticism in recent years. Its progressive stance on social and environmental issues had already raised concerns, but it is now on migration issues that criticism is most vocal. (Photo Credit: © Council of Europe / Candice Imbert, for free, informational, and educational uses relating to the Council of Europe’s work.)

On June 24, 2025, during a speech before the Parliamentary Assembly of the Council of Europe (PACE), the new President of the European Court of Human Rights (ECHR), Matthias Guyomar, was forced to adopt a defensive stance. His speech to the elected representatives of the 46 member states of the Council of Europe sounded like the Court's official response to the open letter co-signed by nine member states on May 22, 2025, criticizing the Court's case law on migration policy. Faced with what he described as “criticisms and challenges” imbued with “anti-judicial populism,” the President sought to reaffirm that the judges of the ECHR were independent and that the Court was not to be a player in the political debate.

In reality, far from being mere populism, the criticism at the heart of this letter is relevant: the Court is no longer merely interpreting the Convention that States have committed themselves to respect. The Court adds obligations or prohibitions on States that contradict the letter and spirit of the text of the Convention.

Thus, several recent decisions of the ECHR have gradually prevented European states from expelling foreign offenders permanently, or even temporarily. The ECLJ wrote about three of these decisions made at the end of 2024 illustrating this case law. The Court has been criticized for systematically prioritizing the right of foreign offenders to private and family life over society's right to security.

During the parliamentary debate that followed the President of the Court's speech, Iceland's Sigríður Andersen went even further in his criticism: “The ECHR has not only interfered with decisions taken by the executive powers of Member States, as in immigration cases, it has also ignored democratic decisions taken at the legislative level.”

The European Court has often been the subject of criticism, but rarely from more than two or three states at the same time. This open letter from nine states, which the ECLJ discussed in this month's video interview, is therefore a signal to the Court that there is significant opposition to what the signatories see as a deprivation of their sovereignty. By dint of extensive interpretations of the terms of the Convention, which it considers a “living instrument,” the European Court is increasingly undermining the trust of member states.

In this regard, the behavior of the President of the ECHR is very illustrative. The day before his speech at the PACE, Mr. Guyomar made an closing intervention at a round table entitled “Democracy and climate justice: the same battle” during the “Summit of Mayors: from Paris to Belém - 10 years of global action for the climate,” where he advocated an active role for the judiciary in addressing the climate challenge. This statement can be seen as a form of environmental activism. In his speech to the PACE, President Guyomar quite naturally cited the controversial “Klimaseniorinnen v. Switzerland” decision, which condemned Switzerland for climate inaction. This ruling gives judges the task of protecting “the interests of future generations,” a term that does not appear in the Convention, as the speaker acknowledged. Furthermore, the ruling gives judges jurisdiction over climate policy issues, which traditionally fall within the competence of member states. Here again, the Court is adding an obligation on states without any basis in the Convention. British Lord Richard Keen put it bluntly: “I think the Court has overstepped its jurisdiction and that this is an example of judicial activism.”

This view is shared by Damien Cottier, who recalled that in Switzerland, a motion was tabled in May 2024 instructing the Federal Council to negotiate a 17^th additional protocol with the aim of reminding the Court of its primary mission to interpret the Convention in accordance with the will of the signatory states.

Over the past 25 years, the ECLJ has intervened in nearly a hundred cases before the European Court and we have seen that on several occasions the Court has effectively refused to guarantee a right or has created a new right, without regard for the spirit and letter of the Convention. For example, the Court refuses to condemn States that legalize euthanasia, even though such a practice is formally condemned by Article 2 of the Convention.

In response to these criticisms, the ECLJ is calling for structural reforms. In its 2020 and 2023 reports on “The Impartiality of the ECHR,” the ECLJ highlighted conflicts of interest between judges of the Court and NGOs acting before the Court. To restore impartiality and confidence in the institution, the ECLJ made a series of concrete recommendations, several of which have already been taken into account by the Court, particularly with regard to the recusal of judges in situations of potential conflict of interest.

As Senator Rónán Mullen pointed out on behalf of the majority parliamentary group, the European People's Party: “While the Court must always be free from interference, it can never be free from scrutiny.” He therefore explicitly called on the European Court to implement the recommendations made by the ECLJ in its reports. While states criticize specific decisions and the ECLJ points to structural problems, the Court's staff cannot simply invoke “the independence of the Court” to shield themselves from such criticism.