Critical briefing: the Chişinău Declaration

Last week, on Friday, 15 May, the Council of Europe adopted the Chişinău Declaration, a significant intervention on the European Court of Human Rights’ migration jurisprudence. The declaration affirms that there have been “significant, complex, migration-related challenges in various member States which were either unforeseen at the time the [European Convention on Human Rights] was drafted or have evolved significantly since then”. 

While this Declaration does not amend the Convention or bind the Strasbourg Court to anything in particular, it is significant in that it gives unprecedented political credence to what the mass migration-sceptics have been saying for years: that the European Convention on Human Rights has produced situations across Europe whereby states are not able to have control over their own borders. 

The Declaration is still much less consequential than many of its supporters would imply

The European Commission itself has nominally welcomed the move, stating that its aim is in “promoting a fair balance between the general public interest and the protection of the individual’s fundamental rights.” While not insignificant, the Declaration is still much less consequential than many of its supporters would imply. 

The process that produced the Chişinău Declaration began roughly a year ago, when Italy and Denmark, supported by seven other member states of the Council of Europe, formally requested a reassessment of the Strasbourg Court’s migration case law. The letter affirmed that these nations “all share a firm belief in our European values”, and that the form of immigration enabled by the Convention “risks undermining the very foundation of our societies. It harms the trust between our citizens and it harms the trust in our institutions.”

The Declaration clarified that the main issues that all member states could agree on were with Article 3 and Article 8 of the Convention. Article 3 prohibits the “inhuman or degrading treatment” of individuals, which has been utilised in too lenient a manner to prevent the removal of individuals from a country. Article 8, which gives individuals a “right to respect for his private and family life”, has been used prolifically to block individuals from being removed if they have since established family ties in Britain, regardless of whether said individual has participated in criminal activity. 

Public debate in Britain has largely attributed the failure to succeed at removing individuals from the country who should not be here largely to the obstacles provided by the Convention. This attribution is not quite as statistically significant as the media coverage of it would make one infer. 

In September, a report from the University of Oxford found that, in the five years to June 2021, only around 3.5 per cent of total deportations were successfully appealed based on grounds of human rights infringements; only 2.5 per cent of deportations were successfully appealed on grounds of infringements into an individual’s right to private and family life. 

However, some of the cases that seem the most ridiculous and that generated the most media attention fall into this small percentage and cannot be easily dismissed. Klevis Disha, an Albanian national who had been sentenced to two years in prison for criminal activity, had been permitted to remain in Britain after it was found that being deported would be particularly harsh on his son, who has undiagnosed autism and who doesn’t like foreign chicken nuggets. Despite the Home Office appealing this ruling, a First-tier Tribunal judge ruled in the criminal’s favour, allowing him to stay. 

All this shows that, while there is some significance behind the complaints in the Chişinău Declaration, they cannot fully — or even principally — account for the slow pace and small scale of deportations. 

The real structural barriers to large-scale removals are different in nature, including inadequate returns agreements with some of the major offending nations like Afghanistan and Pakistan; a backlog of tens of thousands of as-yet unresolved tribunal cases; and insufficient detention facility capacity. All of this is compounded by the chronic inefficiencies of a slovenly civil service, whose dysfunctional processing of removals slows the whole system down.

Britain currently has returns agreements with 19 countries. Despite this, the number of individuals being deported to some of these countries is decreasing. Between 2015 and 2025, the number of people being deported to Pakistan fell by 76 per cent; for Bangladesh, it fell by 86%. Total returns fell by 12 per cent across this decade, despite the significant increase in immigration into Britain.  In 2025, the number of asylum appeals in the backlog doubled, reaching 80,000. 63,000 new appeals were submitted, while only 26,000 were decided. 

No matter what new interpretation of migration law that the Chişinău Declaration might give British courts, it is doubtful that it will be enough to expedite the growing backlog of appeals cases. Cases will continue to accumulate faster than our current system can resolve them, as the system itself will not change.

Nor does the Declaration deter a single person from making the journey to Britain in the first place, which itself is the genesis of this entire issue. The incentive structures that drive large-scale immigration, and the near-certainty of remaining in Britain for years while asylum claims are processed and repealed, all the while receiving vast wealth in the form of Government financial aid, are untouched.

What would materially change those incentives is a withdrawal from the European Convention on Human Rights altogether. Outside the Convention, Parliament would recover the unambiguous legislative authority needed to set the terms of detention, removal, and appear, without reference — or deference — to the Strasbourg Court. If the governing class is determined to reopen the old wounds of Brexit, as it appears increasingly likely to do, then perhaps the issue of mass migration could be resolved once and for all by getting Brexit done the way it should have been in the first place.