Conclusion

The current pattern of behaviour by these two courts could increase the possibility of divergent interpretations of human rights. It is a troubling prospect for future asylum seekers in Europe to have these two neighbouring supranational courts, each adjudicating on their respective inhuman and degrading treatment and family rights articles, whilst ‘potentially adopt[ing] … different approaches and interpretative tools’. 139 Such practices could escalate judicial tension to the point of conflicts of laws. 140 So far, an outright contradiction of ECtHR principles has yet to occur but, even if 2/13 is not a ‘game-changer’, it seems that the tension in the two Courts’ relationship may no longer be one-sided. Therefore, we are now far from the much hoped for increase in dialogue and cooperation between the courts that acceding to the ECHR was intended to achieve. Opinion 2/13 seems to be leading us to the antithesis of the relationship previously aspired to.

There is an evident disproportion between one European Court compared to the other in the area of human rights protection of asylum seekers, namely in terms of scale, scope and consideration of their human rights. This disparity is particularly concerning when the asylum seekers in question are those seeking to preserve the care, comfort and protection of their family unit while in a European host State. Ultimately, what we cannot lose sight of in such circumstances are the fragile human beings at the heart of such cases, and their sometimes equally fragile family unit.

Sarah Atkins

Senior Teaching Fellow in the School of Law, University of Portsmouth