A worrying step backwards of the ECHR on the ban on collective expulsions for those seeking international protection
With its decision in the case N.D. and N.T. v. Spain from 13 February 2020 the European Court of Human Rights (EctHR) Grand Chamber took a historical step back from its previous case law on guarantees against collective pushbacks of migrants seeking international protection.
The case concerns two North African migrants who, as a part of a larger group of of around 75 to 80 persons, crossed the border fence into the Spanish enclave of Melilla, in Morocco, and were forcibly and summarily deported by Spanish authorities back into Moroccan territory.
The ECtHR chamber judgment in October 2017 had ruled that the ECHR was applicable and that Spain had violated the prohibition of collective expulsion vis-à-vis the two individuals. The case was then referred to the Grand Chamber which (similarly to what it did in the case of Khlaifia v. Italy in 2016) reversed the judgment and took an opposite and unprecedented view, holding that the illegal border crossing by the two migrants legitimized their subsequent summary deportation.
Article 4 of Protocol No. 4 of the ECHR simply reads “Collective expulsion of aliens is prohibited”.
In the judgment at stake, the Grand Chamber first confirmed its well-established view that pushbacks at the border fall within the notion of “collective expulsions”. However, the Court held that Spanish authorities did not violate protocol 4, even if they failed to examine the individual circumstances of the two applicants. The Court gave particular weight to the applicants’ conduct, consisting in crossing through an unauthorized land border, in large numbers and with the alleged use of force.
Moreover, the Court placed particular weight on the fact that the applicants could and should have sought asylum at the “Beni Enzar international border crossing”. Although UNHCR had already clarified that, at the time, it was not possible to seek asylum at this border crossing, since there was no system capable of identifying people in need of international protection, the Court endorsed the opposite position of the Spanish government authorities, according to whom “there was an effective possibility to present such applications”.
This underscores once again the detrimental role played by so-called “apparent guarantees”, i.e. mechanisms put in place by a State to formally protect a specific right (in this case: the theoretical possibility to lodge an asylum application at the border) but in fact devoid of any substantive content.
Although pushbacks at the border with Morocco represent a long-standing practice (this part of “Fortress Europe” was built over 20 years ago and has been criticized by human rights organisations ever since) this is the first EctHR judgement on the issue. Over time, pushbacks at the Melilla border have become a powerful tool to prevent asylum seekers from effectively accessing international protection in the EU.
The ECtHR’s judgment represents a dangerous and concerning precedent, potentially legitimizing collective pushbacks and expulsions of asylum seekers in Melilla and elsewhere in the EU, and excluding all migrants crossing “illegally” a border from the possibility to apply for international protection.
Photo by Daan Huttinga on Unsplash
