N.D. and N.T. v. Spain (Application Nos. 8675/15 and 8697/15) Third Party Intervention: The AIRE Centre, Amnesty International, DCR, ECRE and ICJ

The interveners submit that, those who are subject to the authority or effective control of a Contracting Party on or at its land border, and are prevented – whether by acts or omissions of that Contracting Party – from being individually identified and afforded the opportunity to meaningfully raise personal objections to their transfer, as the principle of non-refoulement and the prohibition on collective expulsions require, are in a position equivalent to that of those identified as being within a State’s jurisdiction when intercepted on the high seas or in the transit zone of an airport.

The interveners submit that the prohibition of collective expulsion under Article 4 Protocol 4 would be theoretical and illusory if it did not entail a thorough and rigorous assessment, including the examination of the particular circumstances of those forming part of the group of non-nationals concerned by the measure. This obligation also entails their effective identification and registration as well as information about, and access to applicable protection procedures and remedies where relevant. These safeguards apply whenever the individuals concerned fall within a Contracting Parties’ jurisdiction, including in circumstances when jurisdiction is exercised extraterritorially and irrespective of their migration status.

The interveners submit that the EU asylum acquis interpreted in light of EU fundamental rights and principles envisages effective access to all who may wish to apply for international protection to the appropriate procedures contained in the Asylum Procedures Directive and its recast. Moreover, both Directives envisage the right to an effective remedy against any decision regarding an asylum application, including at the border and the transit zone. This is only possible after an individualised identification and a meaningful opportunity to raise objections, which in itself requires having had prior access to information about the procedures and legal assistance.

In conclusion, the interveners submit that the prohibition of refoulement applies to acts or omissions resulting in exclusion or transfer from the territory of a Contracting Party of individuals under its jurisdiction, including where those acts or omissions are carried out on or at its land borders. Additionally, the collective denial of access to the territory of a Contracting Party to individuals on or at its land borders (and therefore under its jurisdiction), without consideration being given to each individual’s circumstances, constitutes a collective expulsion in violation of Article 4 of Protocol 4. The responsibility of EU States under the EU asylum acquis is engaged in relation to any individuals who may wish to seek international protection. Such measures thus constitute an aggravated instance of a violation of Article 4 of Protocol 4 because of the additional serious breaches by Contracting Parties of their international and EU law obligations.

Resource category: 
International Commission of Jurists,
Resource country: 
Collective expulsions
Safe third country,
Effective access to procedures,
Effective remedy (right to),
Legal assistance / Legal representation / Legal aid,
Personal interview,
Procedural guarantees,
Right to remain pending a decision (Suspensive effect),
Resource date: