N.D. and N.T. v. Spain: do hot returns require cold decision-making?

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Friday, February 28, 2020

Two weeks ago, Strasbourg saw the latest jurisprudential addition to its limited body of case law on collective expulsion of aliens. On 13 February 2020, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its judgment in the case of N.D. and N.T. v. Spain concerning the expulsion of two third-country nationals who were apprehended after climbing the Melilla fence and were summarily returned to Morocco.

Despite the Third Section’s 2017 finding, the Grand Chamber did not find a violation of Article 4 Protocol 4 (A4P4) to the European Convention on Human Rights (ECHR), prohibiting the collective expulsion of aliens.  While the Grand Chamber recognised the expulsion of the applicants to Morocco, it found that the applicants chose to enter Spain as a group, taking advantage of their large numbers and using force. They could have instead chosen to “[…] make use of the existing legal procedures for gaining lawful entry […]”. It was these factors that justified the lack of individualised decisions of their removal taken by the Spanish authorities (231).

The judges seem to follow a highly contextual line that puts individual conduct and border management at the centre of a reasoning that may be seen as too stern – or even punitive – for a human rights court. Indeed, the judgment cannot be read without concerns regarding its repercussions on Europe’s controversial border practices, or on A4P4 litigation, which has been increasingly active over the past decade (Gatta, Migration and the Rule of Law, p. 114). Similarly, its ambiguities may open the doors to perverse interpretations, as noted by the European Centre for Constitutional and Human Rights, and intense criticism, which has been expressed both domestically and internationally. However, an isolated analysis of its text outside the wider body of A4P4 jurisprudence, and the context in which the Court operates in, could lead to conclusions that would better serve media panic and governmental attempts to present the judgment as a justification of non-entrée policies. Likewise, a careful examination of the specific factors that the Grand Chamber considered before reversing the Section’s ruling may be helpful against the disappointment experienced by those who saw the Court as a guardian of rule of law in Europe and border litigation as a strong weapon against the unchecked externalisation of migration. Lastly, the general reform of the Convention system is particularly relevant in the analysis of this judgment’s reasoning, especially as Protocol 15 will soon enter into force, which will elevate the principle of subsidiarity and margin of appreciation to Convention doctrines.

From Čonka to N.D and N.T.: Collective expulsion of aliens in the Court’s history

The travaux préparatoires of Protocol 4 show that the issue of collective expulsion of aliens introduced by Article 4 proved to be an (unsurprisingly) controversial point of negotiation. The initial formation of this Article did not include a prohibition but focused on lawfully residing aliens and the conditions under which they can be expelled. The Committee of Experts rejected the suggested formation and introduced the general and clear prohibition as we know it today and which is in force since 1968.

In the decades that followed, the European Commission of Human Rights declared inadmissible all complaints alleging a violation of A4P4 submitted before it [Jacob Howley, Unlocking the Fortress, p. 119]  with an exception of one case against France submitted in 1991. Four years after the Commission’s abrogation in 1998, the new Court reversed this stance by finding the first violation of A4P4 in its judgment in Čonka v. Belgium, regarding the expulsion of a family of Slovakian nationals of Roma origin and followed with three positive cases in the context of expulsion of Georgian nationals [para.10]. Having established that expulsion measures must be accompanied by sufficient guarantees of adequate consideration of the individuals’ personal circumstances [Čonka, 59-63], the Court took a further bold step in Hirsi Jamaa and others v. Italy, where it found that A4P4 could be applied in the context of interceptions on the high seas [180] and required the existence of individualised examination procedures, including the presence of interpreters and legal advisers [185]. The latter was further consolidated in Sharifi and others v. Greece and Italy, in the context of swift returns of migrants immediately upon their arrival to Italian ports [223].

Despite this positive turn since 2002, the low number of judgments concerning an A4P4 violation suggests a continued reluctance, and certainly a level of caution, in framing this particular prohibition in absolute terms. Such a disinclined approach may have led to another refusal to find a violation of A4P4, in the case of Khlaifia and others v. Italy. That judgment had been the latest A4P4 examination by the Grand Chamber and it’s not surprising that the Court ruled in N.D and N.T building on from Khlaifia, rather than the more positive earlier judgments of Hirsi and Sharifi.

Options and actions: border management and use of force in A4P4 claims

First, it is worth briefly noting the Court’s unequivocal rejection of the Spanish government’s idea of an “operational border” and the attempt to deny responsibility even for individuals crossing parts of the fence. The Court reiterated that territorial exclusions of jurisdiction are not accepted, even if authorities claim difficulties in managing borders [107]. Building on from its previous case law and  the International Law Commission’s Draft Articles on the Expulsion of Aliens (Khlaifia – 243-245), it held that ‘expulsions’ include non-admission instances and cannot be restricted to only protect persons that are clearly present on the territory.

However, the Court regrettably failed to offer an equally unforgiving take on state obligations and decided to find that there has been no violation under A4P4, based on the applicants’ behaviour, including by considering the inadmissibility of Article 3 claims, which deprived the case of refoulement considerations, and the availability of legal pathways. The Court further added that the applicants had no ‘cogent reasons’ for failing to use legal pathways that would be attributable to Spain and would explain why they did not choose them [201].

The choice of the word “storming” is not coincidental as the Court heavily focuses on the applicants’ arrival en masse and emphasises the use of force [201]. The latter phrase is mentioned three times in paragraphs 201, 210, 211 and, most importantly, in 231 where the assessment of the A4P4 claim is concluded and the non-violation is found. Nevertheless, the reiteration of non-refoulement guarantee after the finding of a non-violation is probably not fortuitous and may serve to subtly alert the reader against any thoughts of a blanket application of this judgment [232]. However, the ‘cogent reasons’ finding remains worryingly open, as these have to be attributable to Spain, and does not address situations where cogent reasons may prevent access to lawful entry points that are neither attributable to the applicants nor to Spain.

The conduct factor is a problematic element, but not entirely novel [see para. 9]. However, the Court’s multiple reliance on the use of force and mass arrival, as mentioned above, suggests that it cannot be seen applicable to the situation of irregular entry where these factors are not present, especially where the Convention’s absolute rights under Article 2 and 3 are involved.  The Sharifi judgment also supports a restricted reading of N.D. and N.T. in this sense, as the applicants in that case had arrived in Italy clandestinement [8], hiding in boats, yet A4P4 was not affected by this form of irregular movement.

The question of the existence of admission choices brings to mind the finding of the opportunities that according to the Court the applicants in Khlaifia had [247]. Notably, the Court did not only consider entry points at the border but looked into “several possible means of seeking admission” [212], including asylum applications at embassies and working (!) visas [228] for one of the applicants. Statistical information regarding the actual use of these pathways was also relied upon, but not rigorously examined by the judges. The Court looked into lawful entry statistics provided exclusively by the Government without actually considering the high numbers of people not using these avenues, or reliable sources documenting difficulties in access [143, 155, 158]. In the absence of a strong reasoning on this point, Judge Serghides’ fears in Khlaifia come to mind [dissenting opinion – 38 and 11], making it hard not to imagine a Court that is too keen to give the authorities a chance to describe how they try to protect rights but barely dares to ask whether these rights are indeed protected. That said, the insertion of a “legal avenues test” does beg the question of whether the Court hints at positive obligations for States to secure entry for those in need of protection. However, it is unclear whether the Court introduces a new test under A4P4, or whether it reiterates the general consensus on Convention-compliant border management referred to in paragraph 236. A judgment in M.N. and others v. Belgium will shed light on this issue.

To conclude, while the judgment is not the most positive or clear-cut development in A4P4 case law, it is not a green light to immediate returns at the border either. The Court seems to walk on a subsidiarity path simply looking into whether domestic authorities have tried to engage with their Convention obligations, as put by Judge Spanó and Vice-President of the Court, rather than asserting whether such engagement was indeed not ‘theoretical and illusory’. While a number of ambiguities in the Grand Chamber’s findings may prompt attempts by certain European States to use this judgment as an excuse to justify their arbitrary acts at the borders, the judgment’s legal guarantees, as highlighted above, should serve as a reminder of the Court’s firm stance on non-refoulement obligations.

The Court will have numerous opportunities to clarify the questions raised by this judgment that have been heavily debated over the last two weeks when deciding on pending A4P4 cases and hopefully it will seize this opportunity soon enough. Both judges and lawyers will have to ensure that the absolute nature of non-refoulement, as reiterated in this judgment too, will not be watered down by loose interpretations of A4P4. The role of the Court, particularly in view of an increased ratification of the Protocol 15 by States, is to recalibrate its scale to correctly balance state prerogatives and human rights. Moving forward, the role of lawyers will be to help the Court reconnect with reality: denounce arbitrary state practices, however well-intended they may look in theory, and offer a reminder that the Convention was indeed created in the first place with the notion that everyone’s rights and freedoms matter. In other words, a reminder that everyone has the right to have rights.

This article was written by Stavros Papageorgopoulos, Legal Officer and EDAL Coordinator at the European Council on Refugees and Exiles (ECRE).

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