When the Court Says No: The Shrinking Protection of Interim Measures at the ECtHR

In July, one of our Afghan clients was taken from his detention cell in Poland and deported to Kabul, hours after the European Court of Human Rights refused to grant an interim measure in his case. An interim measure (Rule 39) is an urgent request asking the Court to pause an action, such as a deportation, until it has had time to properly examine the case.

We have written before about deportations that go ahead despite the involvement of the Court. This time we want to look at the bigger picture, because our client's case is not an isolated failure. It is part of a trend we are increasingly seeing, and one that we believe is putting lives at risk.

What happened

On the morning of the deportation, we were alerted by other detainees that our client had been taken from his cell. For most of the day we had no confirmation from the authorities of where he was or what was happening to him. The detention centre gave us no information until the afternoon, and directed us to the Border Guard's Foreigners' Affairs Board, which has still not responded to our inquiry.

With no official confirmation that a deportation was underway, we filed an interim measure request with the European Court of Human Rights that same morning, setting out the risks our client would face if returned. That evening, the court refused it, finding the risk of irreversible harm insufficiently substantiated. By the next day, we had confirmation that he had already been deported to Kabul. He had also not been allowed to apply for international protection in Poland. His return decision was issued without his asylum claim ever being examined, meaning the deportation went ahead without the risks he faced ever being properly assessed. Alongside the interim measure request, we also pursue other avenues of protection and support, including flagging cases to the Ombudsman and to UNHCR.

A wider pattern at the Court

Our client's case fits into a broader trend that we, and other organisations working on Rule 39 requests, are observing at the European Court of Human Rights. According to 2025 statistics, the number of interim measures granted dropped to 222, a 40% decrease compared with 2024. 

This is not primarily about how strong an individual submission is. It reflects a court that is trying to manage a heavy caseload by focusing its limited resources on the cases it sees as most urgent. There is currently no sign that the court plans to make the decisions on interims more transparent. It does not give detailed reasoning for individual rulings, and the only public information is a short weekly summary of cases across all countries. For applicants and their lawyers, that means very little insight into why a specific request was refused, and how future requests can be strengthened.

A Rule 39 request is meant to be a last resort, reserved for cases of genuine imminent and irreversible harm, that part is not in question. The concern is different: even where that threshold is met, a request can still be refused simply because the Court is reducing the overall number of interim measures it grants. In other words, meeting the imminence requirement is no longer a reliable guarantee of protection.

This matters even more here, since the interim measure was not a safety net alongside a proper asylum procedure, but the only safeguard there was. We are increasingly seeing people in Poland issued return decisions without ever accessing the asylum procedure at all since the ban on asylum in March 2025. A return decision does not involve the same examination of risk as an asylum claim. Where that examination never happens, an interim measure may be the only thing standing between someone and a removal that was never properly assessed.

Why this endangers lives

Interim measures exist to stop something irreversible from happening before a court has had the chance to properly examine a case. For our clients, that "something irreversible" can mean being sent back to a country where they face imprisonment, torture, or simply disappearing altogether. Once someone is deported to Kabul, or to another country we cannot monitor, they can disappear entirely: unreachable, unable to access any further legal protection, and at risk of serious harm or death.

The level of evidence the Court now seems to expect does not match how these situations actually play out. Lawyers are rarely told in advance that a removal is going to happen. Most of the time, we learn about it from other detainees, by word of mouth, hours or sometimes only minutes before it happens. Waiting for official confirmation before submitting an application to stop the deportation is not a realistic option, because by the time confirmation arrives, the flight has often already left.

An uneven playing field

If interim measures are only granted where there is clear, confirmed evidence of an imminent and specific harm, then a system that withholds information from lawyers and civil society works in the authorities' favour. Acting on informal, unconfirmed warnings is often the only way. If that is no longer enough to secure protection while a case is examined, then not following official notification procedures becomes, in effect, a way to make it less likely that an interim measure can be obtained in time.

We continue to file interim measure requests where someone faces a genuine and imminent risk, and to push for clearer reasoning in individual decisions and for greater transparency in how the Court is applying Rule 39 more broadly. We also continue to support our clients through every domestic remedy available to them, including in cases where a deportation has already taken place.

We will keep sharing these cases, not only because of what they mean for the individuals concerned, but because they point to a system under strain, at a moment when the people relying on it can least afford it to fail.