Introduction
The judgment of the Grand Chamber in N.D. and N.T. v. Spain adds to the European Court of Human Rights’ growing body of jurisprudence on matters related to migration. The case concerned the expulsion of two men who had climbed over the fence separating Moroccan territory from the Spanish enclave of Melilla and who had been returned immediately. They argued that their expulsion had violated article 4 of Protocol 4 to the European Convention on Human Rights, which prohibits the collective expulsion of aliens; they also contended that no effective legal remedy had been available to them contrary to article 13 ECHR. The Grand Chamber did not find a violation of the Convention.
The case gives rise to interesting issues of admissibility as well as regarding the interpretation of article 4 of Protocol 4.
Facts
The applicants were nationals of Mali and of Cote d’ Ivoire respectively. They had fled their home countries and arrived in Morocco, where they stayed in an informal migrants’ camp. The camp is situated near the town of Melilla. Melilla is a Spanish enclave on the North coast of Africa which is surrounded by Moroccan territory. The border between Melilla and Morocco is an external border of the Schengen area and provides access to the European Union.
The border is highly secured. There are three fences, which are six, three and six metres high respectively. The Spanish Guardia Civil is patrolling the area to prevent illegal border crossings.
On 13 August 2014, large groups of people tried to cross the border on two occasions. The applicants took place in the first attempt. They managed to reach the fences and to climb them. They stayed on the top of the fence for several hours. Finally, members of the Guardia Civil provided them with ladders. After the applicants had climbed down, the member of the Guardia Civil handcuffed them, transported them to Morocco and handed them over to the Moroccan authorities. The applicants were not asked about their personal circumstances, their identities or the reasons motivating them to wish to go to Spain
A few weeks after their return to Morocco, the applicants succeeded in overcoming the fences separating the territory of Morocco from the Spanish territory. They were transported to Spain, but ultimately expelled following legal proceedings in which they had been represented by lawyers.
The applicants submitted that their forceful return to Morocco after their first attempt to climb over the fences of Melilla, violated the prohibition of collective expulsion of aliens.
Legal assessment
Admissibility
The Grand Chamber examined a number of issues regarding the admissibility of the applications.
Pursuant to article 37 ECHR, the Court can stop considering a case and strike it out of the list of pending cases if the applicant does not intend to pursue the application further. However, the Court may also decide to continue the examination of the case if that is required in the interest of human rights.
The Court had asked the applicant’s representatives whether they still communicated with their clients to establish if the applicants intended to pursue their application. The representatives had stated that the applicants lived in precarious conditions and changed their place of residence frequently; however, they had stayed in touch via WhatsApp and with the help of an interpreter. The Court was satisfied that they applicants intended to pursue they applications; the Court also pointed out that the examination of the case was required in the interest of human rights, since it concerned issues of interpretation of the Convention which are important in the context of increased migration and the new challenges it entailed.
Jurisdiction
The Convention only applies to persons within the jurisdiction of a contracting state. The Spanish government had argued that the applicants had never been within its jurisdiction. While it conceded that the fences had been built on Spanish territory, it argued that they had been erected to prevent persons entering the EU unlawfully as required by the Schengen border code. There, the Government argued, persons came into the Spanish jurisdiction only after they had passed the three fences and the police line.
The Court was not persuaded by this argument. It referred to its long-standing jurisdiction to the effect that jurisdiction was primarily territorial: States are obliged to guarantees the rights enshrined in the Convention on their territory. They were not at liberty to exclude their responsibility under the Convention for certain parts of their territory. Since the applicants had reached the fences and the fences stood on Spanish soil, the applicants had been within Spain’s jurisdiction.
Victim status
The Spanish government had argued that the applicants had lost their victim status, since they had succeeded in entering Spain later on and had been expelled following procedures in which they had been represented by counsel. The Court rejected that argument.
Applicability of art. 4 of Protocol 4
The Grand Chamber examined whether art. 4 of Protocol 4 was applicable in the case.
The Spanish government argued that the applicants had not been expelled but rather been prevented from entering the EU. According to the government, the drafters of the Convention had not intended to extend the scope of art. 4 of Protocol 4 to extra-territorial situations like the one at hand. The provision did not afford any protection to persons who had the opportunity to cross a land border lawfully but chose not to make use of it.
The Court reiterated that states have, in principle, the right to control the entry, residence and removal of aliens. Consequently, they were entitled to protect their borders. It also pointed to the Schengen border code, which underlines the importance of managing the entry of migrants for states which have an external EU border and therefore control access to the EU. At the same time it stressed that the need to protect borders did not absolve states from their obligations under the Convention
After an extensive analysis of relevant provisions of international law, the Court concluded that expulsion was to be interpreted as ‘to drive away from a place’. In the Court’s view, there is no distinction between the non-admission of an alien and his expulsion. Once an individual has entered a state’s territory and then forced to leave it, an expulsion has taken place and art. 4 of Protocol 4 is applicable. Since the Court had ruled that the applicants had been within Spain’s jurisdiction and since they had been escorted outside of Spanish territory, the events fell within the scope of art. 4 of Protocol 4.
Merits – Collective expulsion
The Grand Chamber examined whether the expulsion had been ‘collective’. The Court referred to its established case law to the effect that an expulsion does not have to affect a minimum number of persons to be ‘collective’. It also reiterated that the expelled individuals do not have to belong to a certain group or share any distinctive features such as ethnicity or beliefs.
The characteristic which renders an expulsion ‘collective’ is, in the Court’s view, is that someone is subjected to it without a procedure giving him the opportunity to submit his arguments and without examining his personal circumstances.
The Court also pointed out that the conduct of the applicant plays a role when assessing the scope of protection afforded by art. 4 of Protocol 4. That principle also applied to persons who enter a country in an illegal manner, making use of force and of the situation created by large numbers of persons trying to cross the border at the same time. However, in this context it also had to be considered whether these persons had had another choice, i.e. whether Spain had provided genuine access to means of legal entry.
The Court stated that states whose border is an external border of the EU are obliged to make available effective access to means of legal entry. Where such arrangements exist, the Convention did not prevent them from refusing entry to aliens who did not comply with these procedures without cogent reasons.
The Court examined the possibilities Spain offered migrants or asylum seekers to enter Spain lawfully or to request permits to do so. It concluded that a sufficient number of ways existed to claim refugee rights or to request asylum in Spain, inter alia via a number of Spanish consulates and embassies. Since the applicants had not made use of these procedures but tried to force their way into Spain, their immediate return did not constitute a breach of art. 4 of Protocol 4.