In a mammoth new judgment the Grand Chamber of the European Court of Human Rights has developed a significant exception to the general prohibition on summary removal of migrants without consideration of their individual circumstances. In recent years European countries have resorted to summarily deporting migrants who have recently crossed their borders in large numbers (known as “pushbacks”). Such action appeared to be in breach of Article 4 of the Fourth Protocol to the European Convention on Human Rights (ECHR), which states:

Collective expulsion of aliens is prohibited.

The Strasbourg court has generally been fiercely protective of the right not to be summarily removed. It has extended this protection to migrants rescued at sea in Hirsi Jamaa and Others v. Italy (application no. 27765/09). The decision in N.D. and N.T. v Spain (applications nos. 8675/15 and 8697/15) is the first time it has considered immediate summary removal of a person who has crossed a border.

Attempt to climb into Spain

The case concerns two Malian citizens who entered the Spanish enclave of Melilla in north Africa, which is surrounded by Moroccan territory. At the border between Melilla and Morocco, but crucially on the Spanish side, there is a series of three fences designed to prevent illegal entry into Melilla. The first and third fences are both six metres tall and are designed to be unclimbable; getting over all three is extremely difficult.

As part of a group of approximately 600 others, the two applicants made it to the third fence and spend several hours sitting on it before they accepted a ladder offered by the Spanish police and climbed down. Upon stepping down off the ladder they were both arrested and immediately removed to Morocco.

The decision below

In October 2017, the Third Section of the Strasbourg court ruled that there had been a violation of Article 4 of the Fourth Protocol in this case. Its relatively short judgment did not even consider the territorial position of the fences. It simply concluded that Spain was exercising effective control over the two men; was therefore exercising its jurisdiction; and that the men had been deported without any consideration of their individual circumstances.

Unfortunately, that straightforward approach was not adopted by the Grand Chamber.

Did the ECHR apply at all?

Before the Grand Chamber, the Spanish government argued that the ECHR and its Protocols had no application here because the applicants had not actually entered Spain. In effect, it claimed that by building the fences Spain had limited its jurisdiction.

Unsurprisingly in light of its recent case law on territoriality and jurisdiction, the Grand Chamber rejected this argument. The court confirmed that states cannot use their domestic legal arrangements to limit their responsibilities under the ECHR:

…the special nature of the context as regards migration cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction (see, mutatis mutandis, Hirsi Jamaa and Others, cited above, § 178). As a constitutional instrument of European public order… the Convention cannot be selectively restricted to only parts of the territory of a State by means of an artificial reduction in the scope of its territorial jurisdiction.

To conclude otherwise, the court added, “would amount to rendering the notion of effective human rights protection underpinning the entire Convention meaningless”.

Applying Article 4 of the Fourth Protocol

Since this was the first time the Grand Chamber had considered a case of this nature, it drew on recent cases concerning summary removals at sea. The panel concluded that Article 4 of the Fourth Protocol was applicable here for the same reason as in those cases: it protects individuals who might seek to rely on Article 3 ECHR from being removed before they are able to assert their claims:

As a result, Article 3 of the Convention and Article 4 of Protocol No. 4 have been found to apply to any situation coming within the jurisdiction of a Contracting State, including to situations or points in time where the authorities of the State in question had not yet examined the existence of grounds entitling the persons concerned to claim protection under these provisions…

In the Court’s view these considerations, which formed the basis for its recent judgments in Hirsi Jamaa and Others, Sharifi and Othersand Khlaifia and Others (all cited above), concerning applicants who had attempted to enter a State’s territory by sea, have lost none of their relevance. There is therefore no reason to adopt a different interpretation of the term “expulsion” with regard to forcible removals from a State’s territory in the context of an attempt to cross a national border by land. Nevertheless, it should be specified that this approach follows from the autonomous interpretation of Convention terms.

But despite these rulings on preliminary issues, the court found that there was no violation of Article 4 of the Fourth Protocol.

Court contorts law to create an exception

The Grand Chamber reached this surprising conclusion by ruling that it was actually the applicants’ fault that they had been summarily deported. They should have applied for asylum in Spain lawfully from Morocco. The Strasbourg court held that the applicants could be identified as the authors of their own misfortune and therefore there was no failing by the Spanish government:

… the Court considers that it was in fact the applicants who placed themselves in jeopardy by participating in the storming of the Melilla border fences on 13 August 2014, taking advantage of the group’s large numbers and using force. They did not make use of the existing legal procedures for gaining lawful entry to Spanish territory in accordance with the provisions of the Schengen Borders Code concerning the crossing of the Schengen area’s external borders… the Court considers that the lack of individual removal decisions can be attributed to the fact that the applicants, if they indeed wished to assert rights under the Convention, did not make use of the official entry procedures existing for that purpose, and was thus a consequence of their own conduct…

Accordingly, there was “no violation of Article 4 of Protocol No. 4”.

“Pushbacks” now legal, sometimes

This judgment significantly complicates the law on “pushbacks” of migrants trying to enter Europe. The position of the Strasbourg court in Hirsi Jamaa and Others v Italy, and its first instance decision in the present case, indicated that the rule against summary removal was absolute and had to be that way in order to ensure that states met their non-refoulement obligations. The new legal position is that the lawfulness of such action under the ECHR now turns on the alternatives available to migrants illegally crossing the border.

For some states (like the UK) which do not allow protection claims to be made outside their territory, there is no alternative to illegal entry: pushbacks would clearly be a breach of Article 4 of the Fourth Protocol. But where claims are possible from outside, the lawfulness of any pushback will turn on a detailed assessment of the feasibility of making a protection claim from abroad. This legal ambiguity will be unhelpful for migrants and border guards (at least, guards who want to adhere to the law).