N.D. and N.T. v Spain: A Slippery Slope for the Protection of Irregular Migrants

Post by Giulia Raimondo. Giulia is a PhD Candidate in International Law (IHEID) and Doc.Mobility Fellow (SNF).

Collective expulsions are prohibited in an absolute manner by all major human rights treaties. Most notably, the EU member states are prohibited from conducting collective expulsions under Article 4 of the Protocol No. 4 to the European Court of Human Rights (ECHR) (hereafter Protocol 4). The prohibition of collective expulsion is vital for the protection of irregular migrants, for its protection extends to every foreigner. This prohibition refers to any measure compelling a group of non-nationals to leave a country, without a reasonable and objective examination of the situation of each individual concerned (see, ECHR Guide). Hence, according to the ECHR, the number of people subject to a similar expulsion measure is irrelevant for the purposes of the configuration of a collective expulsion. The decisive element, which renders the expulsion contrary to Article 4 of Protocol 4, is therefore a procedural criterion, whereby the individuals concerned are no more considered as such, uti singuli, but as part of an impersonal whole. 

Up to now, the Court has found a violation of the prohibition of collective expulsions in four cases. The common denominator was the lack of an individual procedure at the border, requiring the state authorities to carry out a reasonable and objective evaluation of the individual situation of each applicant of a group, rather than summarily deporting them. A collective expulsion takes place in the presence of two cumulative elements: (1) a group of migrants are expelled together with other migrants in a similar situation, (2) without due consideration of their own individual situations.

The much criticised (see here and here) Grand Chamber ruling in Khlaifia v Italy clarified that Article 4 of Protocol 4 “does not guarantee the right to an individual interview in all circumstances; the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State”. However, it also clarified that the domestic classification of “refusal of entry with removal” instead of “expulsion”, has no bearing on whether the prohibition of collective expulsion, enshrined in Article 4 of Protocol 4, is applicable. As the jurisprudence of the ECHR shows, a refusal of entry, be it enforced on the territory of a contracting state or beyond, may also amount to collective expulsion.

Most recently, the ECHR pursued the current trend consisting in overturning its earlier judgements and entailing a considerable erosion of migrants’ protection. The Grand Chamber reversed another significant decision on collective expulsions: the case of N.D. and N.T. concerning the “hot return” (“devoluciones en caliente”) policy in the Spanish enclave of Ceuta and Melilla. This policy consists in handing migrants who have been intercepted by the Spanish border guards over to the Moroccan authorities without carrying out the legally established procedures (see here).

In 2017, the Court’s Third Section recognised that “in the absence of any examination of the individual situation of the applicants, who were not subjected to any identification procedure by the Spanish authorities”, the refusals of entry to a group of Malian and Ivorian citizens amounted to a collective expulsion. On 13 February 2020, the Grand Chamber confirmed that “the decisive criterion in order for an expulsion to be characterised as “collective” has always been the absence of “a reasonable and objective examination of the particular case of each individual alien of the group”.  Nevertheless, the Court further reasoned that states, in the fulfilment of their duty to control their borders, can require asylum seekers submit their protection claims at border crossing points.  States may refuse aliens entry to their territories, including asylum-seekers who attempt to enter the territory irregularly. 

In the case of N.D. and N.T., one of these border crossing points was accessible to the applicants and this was sufficient for the Court to find that Spain provided “genuine and effective access to procedures for legal entry into Spain”, despite the applicants’ submission about the impossibility to claim asylum there. This credibility of such a submission was questioned by the Court. Most importantly, the Grand Chamber insisted that even if the applicants could prove the lack of access to an asylum procedure at the border, that circumstance resulted from the border control activities of the Moroccan authorities, and was therefore unrelated to the action of the Spanish authorities. In the in the Court’s opinion, the relevant conduct was exclusively attributable to Morocco. Hence, Spain could not bear any responsibility for the conduct the Moroccan border guards. This is despite the well-established and notorious border control cooperation between the two states. In the light of these observations the Court considered that the lack of individual removal decisions was a consequence of the applicants’ irregular entry, which justified their expulsion. In other words, as long as migrants attempt to cross the European borders irregularly, states may collectively (and with impunity) expel them. 

This decision sets a dangerous precedent in many respects. First, return decisions taken exclusively on the basis of irregular entry and in the absence of any consideration for the principle of non-refoulement or to the conditions in the country of return, are at variance with the non-penalisation principle embodied by Article 31 of the Refugee Convention. This provision requires contracting states not to impose upon migrants “penalties, on account of their illegal entry or presence”. Second, by ignoring the border cooperation between Spain and Morocco, the Court risks supporting the circumvention of the Conventions’ obligations. Third, the prohibition of collective expulsion concerns a fundamental procedural guarantee, whose enjoyment seems to be subordinated to the condition of legal entry that has no place in human rights law. The prohibition of collective expulsions ensures that no one, irrespective of her legal presence on the territory, could be expelled from a state without a reasonable and objective examination of her individual case. Subordinating this fundamental guarantee to the requirement of legal entry risks imposing on migrants, especially asylum seekers, a disproportional burden that would most likely impair their effective protection.

Ironically, the ECHR concluded this problematic decision stating that contracting states while controlling their borders should comply with their convention obligations, and in particular with the principle of non‑refoulement. According to the Court this objective can be best pursued by increasing border controls, rather than by improving the possibilities to gain admission safely and legally. 

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How to cite this blog post (Harvard style) 

Raimondo, G. (2020). N.D. and N.T. v Spain: A Slippery Slope for the Protection of Irregular Migrants. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/04/nd-and-nt-v-spain [date]