Sylvie Da Lomba

Public health powers in relation to infectious tuberculosis in England and France: a comparison of approaches.

This article examines the legal responses to infectious tuberculosis in England and France. Given that tuberculosis has re-emerged as a public health threat in both countries, the differing jurisprudence and legal frameworks of disease control in the two jurisdictions warrant examination. Two questions arise in that respect: firstly, what is the role of the State in the protection of public health in the context of tuberculosis, and secondly, to what extent can the law intervene to coerce individuals to undertake health measures for the protection of society at large. These issues reveal the tensions that exist between the individual and public interest. France and England differ greatly in their responses to such tensions. Paradoxically, France, that has traditionally embraced strong State intervention, has been reluctant to curtail individual freedoms for the benefit of public health. Conversely, England, that has tended to be more closely associated with liberalism, has been ready to accept and even promote restrictions to individual freedoms in the collective interest.

Vulnerability, Irregular Migrants’ Health-Related Rights and the European Court of Human Rights

The protection of irregular migrants’ health-related rights brings to the fore the tensions that exist between human rights, citizenship and the sovereign state, and exposes the protection gaps in the international human rights regime. With this in mind, I consider the merits of a vulnerability analysis in international human rights law (ihrl). I posit that, detached from specific groups and reconceptualised as universal, vulnerability can be reclaimed as a foundation and tool of ihrl. I further contend that the deployment of a vulnerability analysis can alleviate the exclusionary dimension of ihrl and extend protections to irregular migrants. On this basis, I investigate the development of a vulnerability analysis in the case law of the European Court of Human Rights. I argue that, in contrast with the Court’s vulnerable population approach, a vulnerability analysis can improve protection standards for irregular migrants in the field of health.

The EU qualification directive and refugees sur place

While the profile of refugees sur place may be considered atypical, it does not set them apart from other persons in need of international protection and refugees sur place are subject to the same international protection regime. The Qualification Directive does not and cannot supersede the 1951 Convention and the EU Member States remain bound by their obligations under this instrument. It remains the case that asylum claims sur place based on post-departure actions arouse suspicion. The author argues that this suspicion pervades the Qualification Directive’s approach to these claims. Indeed the Directive places must emphasis on continuity and singles out manufactured asylum claims, thereby raising the issue of good faith. She concludes that the proposed approach to international protection needs sur place would render Articles 5(3) as well as Article 20(6) and (7) of the Qualification Directive redundant. It would also necessitate a redrafting of Article 5(2) with a view of removing the focus on continuity. It is the author’s view that the second phase of the CEAS provides the EU with a timely opportunity to reconsider its response to refugees sur place.

The echr and the Protection of Irregular Migrants in the Social Sphere

For more than a decade, the Council of Europe has expressed deep concern over irregular migrants’ poor access to basic social rights. With this in mind, I consider the extent to which the European Convention on Human Rights can contribute to protect irregular migrants in the social sphere. To this end, I consider the role of international supervisory bodies in social rights adjudication and discuss the suitability of international adjudication as a means to uphold irregular migrants’ social rights. Having reached the conclusion that international adjudication can help protect irregular migrants’ social rights, I examine the ‘social dimension’ of the European Convention on Human Rights and the significance that the European Court of Human Rights attaches to immigration status. I posit that the importance that the Court attaches to resource and immigration policy considerations in N v. United Kingdom significantly constrains the ability of the European Convention on Human Rights to afford irregular migrants protection in the social sphere.