ECtHR - N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, 13 February 2020

The government’s preliminary objections

On jurisdiction, the Court rejected the argument of an operational border on the basis that jurisdiction is primarily territorial and as such could be limited only in exceptional circumstances. In this regard, Spain referred to the “difficulty of managing illegal immigration in the Melilla enclave” but the Court held that it could not discern any reasons to believe that the effective exercise of Spanish authority was restricted. The objection was rejected. Regarding Spain’s argument that the applicants had eventually entered Spain and could not maintain their victim status, the Court replied that this case concerned an alleged collective expulsion, and as such it could not take into consideration events subsequent to a separate border crossing. This objection was also rejected.

Lastly, on the exhaustion of domestic remedies, the government argued that the applicants could have tried to obtain entry visas in their countries of origin or applied for asylum while in Morocco. The Court answered that, in light of the applicants’ complaint that they were subjected to a collective expulsion, the procedures proposed by Spain could not be regarded as effective remedies, themselves being presented as alternatives to illegal entry rather than remedies. The objection was dismissed.

Alleged violation of Article 4 Protocol No. 4 (Art. 4 P4)

Applicability

The Court first admitted that states may arrange policies to allow access to their territory only to people fulfilling the relevant legal requirements, especially given the present context of immigration in Europe. However, it stressed that ensuing problems could not justify recourse to practices incompatible with the Convention.

It then asked whether the concept of “expulsion” within the meaning of Art. 4 P4 covered the “non-admission” of aliens at a state border given Spain’s argument that this situation was a case of non-admission and was not covered by the expulsion provisions Art. 4 P4. The Court referred to the International Law Commission’s (ILC) Draft Articles on the Expulsion of Aliens which show that the terms “expulsion”, “refoulement” and “non-admission” could be used interchangeably, so that “expulsion” would be used as a generic term. Therefore, the Court equated the “non-admission” of a refugee with their “refoulement”, meaning that the sole fact that a state refuses to admit an alien within its jurisdiction does not release it from its obligations towards that person.

The Court found this to be further confirmed by EU law, as well as its own previous case law. The Court concluded that the protection of the Convention could not be dependent on formal considerations (such as whether the people were admitted to the territory in accordance with a particular provision of national or European law) – states’ legitimate concern to foil attempts to circumvent immigration restrictions cannot go so far as to render ineffective the protection afforded by the Convention. Therefore Article 4 Protocol 4 was found to be applicable in this case.

Merits

Pursuant to its judgments in Hirsi Jamaa, Sharifi, and Khlaifia, the Court noted that the decisive criterion for Art. 4 P4 is the basnece of a reasonable and objective examination of a specific case and did not depend on the number of persons involved. The aim of this Article is to maintain the possibility for each alien concerned to assert a risk of treatment incompatible with the Convention were they to return. That is why it requires states to ensure that they each have “a genuine and effective possibility of submitting arguments against their expulsion”.

However, there is no violation if the lack of an individual decision can be attributed to the applicant’s own conduct, a culpability argument that had been raised by Spain. According to the Court, where there are enough arrangements for legal entry to secure the right to request protection under the Convention in a genuine and effective manner, states can require applications to be submitted at existing border points. As such, they may refuse entry to aliens, including potential asylum seekers, who have crossed the border at a different location without cogent reasons that would be attributable to Spain. The Court agreed that Spain gave the applicants several possible means of seeking admission to the national territory by applying for a visa or for international protection and that these legal avenues were available. Moreover, the Court did not find that the applicants had any “cogent reasons” not to use these border procedures, noting that the applicants also had access to Spanish embassies and consulates to have their file examined under a specific procedure for international protection (Section 38 of Law 12/2009) or to apply for a visa.

The Court stressed that there was no general duty under Art. 4 P4 for states to bring persons under the jurisdiction of another state within their own. Departing from the Chamber judgment, the Court found that the lackof an individual removal decision was attributable to the non-use of official entry procedures and there had been no violation of Art. 4 P4.

Alleged violation of Art. 13 ECHR in conjunction with Art. 4 P4

The applicants complained of the lack of an effective remedy with suspensive effect by which to challenge their immediate return to Morocco. The Court held that in so far as it had found that the lack of an individualised procedure for their removal was the consequence of the applicants’ own conduct, it could not hold the state responsible for not making available a legal remedy against that removal. The Court reversed the Chamber ruling and found that there was no violation of Art. 13 ECHR taken in conjunction with Art. 4 P4.