Is N.D. and N.T. v. Spain the new Hirsi?

On 3 October the Third Chamber of the European Court of Human Rights published its judgment N.D. and N.T. v. Spain, which concerns Spain’s pushback policy in Melilla. It found a violation of Article 4 of Protocol 4 (prohibition of collective expulsions of aliens) and of Article 13 (right to an effective remedy) taken together with Article 4 of Protocol 4. This post focuses on the issues of jurisdiction and the prohibition of collective expulsions addressed in the judgment, as well as its policy implications. 

Facts

The facts of the case are straightforward: on 13 August 2014 a group of Sub-Saharan migrants, including the applicants, tried to enter Spain via the Melilla border crossing which consists of three consecutive barriers. They managed to climb to the top of the third barrier. When they climbed down with the help of the Spanish forces, they were immediately apprehended by members of the Spanish civil guard and returned to Morocco in the company of 75 to 80 other migrants who had attempted to enter Melilla on the same date. Their identities were not checked and they did not have an opportunity to explain their personal circumstances or to receive assistance from lawyers, interpreters or medical personnel.

Jurisdiction

Spain argued that the events occurred outside its jurisdiction because the applicants had not succeeded in getting past the barriers at the Melilla border crossing and therefore had not entered Spanish territory. The Court first recalled its general principles on jurisdiction (paras 49-51), referring in particular to Hirsi Jamaa and Others v. Italy, and specifying that when the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation to secure the rights and freedoms that are relevant to the situation of that individual (para 51). Applying these principles to the facts of the case, the Court first observes that:

‘la ligne frontalière entre le Royaume du Maroc et les villes de Ceuta et de Melilla a été délimitée par les traités internationaux auxquels les Royaumes d’Espagne et du Maroc sont parties et qu’elle ne peut pas être modifiée à l’initiative de l’un de ces États pour les besoins d’une situation de fait concrète’ (para 53).

Yet in the next paragraph the Court explains that it is unnecessary to establish whether the border crossing between Morocco and Spain is located on Spanish territory because:

dès lors qu’il y a contrôle sur autrui, il s’agit dans ces cas d’un contrôle de jure exercé par l’État en question sur les individus concernés (Hirsi Jamaa, précité, § 77), c’est-à-dire d’un contrôle effectif des autorités de cet État, que celles-ci soient à l’intérieur du territoire de l’État ou sur ses frontières terrestres. De l’avis de la Cour, à partir du moment où les requérants étaient descendus des clôtures frontalières, ils se trouvaient sous le contrôle continu et exclusif, au moins de facto, des autorités espagnoles.

Three points deserve attention here. First, the Court explicitly holds that a State cannot modify the border in order to address the needs of a specific situation. In other words, States cannot move their borders inwards in order to prevent asylum seekers from making an asylum claim. The judgment thus echoes Amuur v. France, which held that States cannot deny the applicability of domestic asylum law in the international zones of airports. Second, the Court finds it unnecessary to establish whether the border crossing between Morocco and Spain is located on Spanish territory. This implies that even if the border crossing had been located at the border or on Moroccan territory, the applicants would still have been under Spanish jurisdiction because they were under the continuous and exclusive control of the Spanish authorities. In other words, if border guards prevent an individual from entering the State’s territory, the State has the obligation to secure that person’s right to apply for asylum and not to be pushed back (see also Kebe and Others v. Ukraine). Third, the statement in paragraph 54 that where there is control over an individual this is de jure control raises questions regarding the nature of Spain’s jurisdiction. The Grand Chamber indeed said so in paragraph 77 of Hirsi, but that paragraph deals with a State’s flag jurisdiction (which amounts to de jure control), which is not relevant in the present case. Moreover, in Al-Skeini and Others v. United Kingdom the Court explicitly noted, first, that there are cases where the use of force by a State’s agents may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction and, second, that what is decisive in such cases is the exercise of physical power and control over the person in question (para 136). This is arguably also the case in N.D. and N.T.: the applicants were under the de facto control of the Spanish civil guard, as the Court itself recognises in the same paragraph. They were also under its de jure jurisdiction to the extent that the events occurred on Spanish territory, but the Court explicitly chooses not to address that aspect. Thus, although it is good news that the Court confirms that the use of force by State agents at the border triggers a State’s jurisdiction under Article 1 ECHR, it is regretful that it creates confusion by referring to Spain’s de jure jurisdiction. Let’s hope that the Court’s next decision on this issue (a similar case is currently pending before it) will bring some much-needed clarity to this area of the law.

Prohibition of collective expulsions

The Court’s ruling on the merits does not come as a surprise, as the facts are so straightforward that it would have been difficult for the Court to find otherwise. The Spanish practice of pushbacks at the borders of its enclaves Ceuta and Melilla is well-known, the applicants submitted videos of the events of 13 August 2014 to the Court, and the applicants’ version of events was corroborated by many witness statements gathered inter alia by UNHCR and the Council of Europe Human Rights Commissioner. As the Court itself notes, if interceptions on the high seas are covered by Article 4 of Protocol 4 (as Hirsi established) refusal of entry to the territory must also amount to expulsion (para 104). Furthermore, as the applicants were not subject to any identification procedure whatsoever, the expulsions were collective and breached Article 4 of Protocol 4 (para 107). Likewise, the Court holds that the applicants’ lack of access to any domestic remedy against their expulsion is in breach of Article 13 taken together with Article 4 of Protocol 4 (paras 121-22). More interestingly, the Court repeats (at para 101) what it had previously stated in Khlaifia and Others v. Italy:

‘The Court has also taken note of the “new challenges” facing European States in terms of immigration control as a result of the economic crisis [and] recent social and political changes which have had a particular impact on certain regions of Africa and the Middle East’ (para 241).

The message is clear: even when facing high migratory pressure States have to guarantee the rights of migrants, including refugees, and pushbacks are out of the question.

Implications

The most interesting question is of course: what are the consequences of this judgment? Will it impact European policies like Hirsi and M.S.S. v. Belgium and Greece did? As this is a Chamber judgment, it arguably carries less weight, and can still be referred to the Grand Chamber – although it is unlikely that the latter would rule differently. In any event for now N.D. and N.T. signifies that if Spain wants to avoid being found guilty of pushbacks at the Moroccan border it has to grant all migrants who reach the border crossing in Ceuta or Melilla access to its territory and to an asylum determination procedure. Inevitably, some will argue that this would open the floodgates. Indeed, given that the routes to Europe through Greece and Italy have been largely closed since the EU-Turkey deal and increasing European and Italian involvement in Libya, it is likely that those trying to reach Europe will knock at the – now open – door in the Spanish enclaves. However, it is unlikely that Spain will be willing to grant such access to its territory, especially in view of the limited reception capacities in the enclaves and the poor track record of solidarity shown by EU Member States with border States, notably Greece and Italy. Rather, it can be expected that Spain will either continue its pushback policy in spite of the Court’s ruling, or that it will look for new ways to prevent migrants, including refugees, from reaching the border crossing at all. This would fit in the current trend of the EU sealing off its external borders and cooperating with States of origin and transit in order to stop migration flows at all costs.