Illegalization of migrants as inhuman and degrading treatment: envisioning non-returnability under Article 3 of the European Convention of Human Rights

Abstract This paper asks whether the illegalization of individuals can amount to inhuman and degrading treatment under Article 3 of the European Convention on Human Rights (ECHR). While the power to regulate residence is a core prerogative of European states, human rights scrutiny of the effects of indefinite irregularity remains limited. The paper focuses on migrants in ‘non-returnability’: those who cannot be deported for human rights reasons yet are denied lawful residence. Such individuals endure prolonged exclusion, destitution, and profound powerlessness. The paper proceeds in two parts. First, it situates non-returnability within existing human rights law and scholarship, exposing the legal and protection gaps. Second, it explores its fit within Strasbourg’s interpretation of inhuman and degrading treatment, drawing on the Court’s benchmarks, overlooked jurisprudence, and analogies to rehabilitation and irreducible sentences. The argument concludes that the European Court of Human Rights presently has doctrinal tools to scrutinize illegalization as a form of state-sanctioned inhuman and degrading treatment.