In ND & NT v Spain, the European Court of Human Rights decided that the expulsion of two sub-Saharan migrants from a set of barriers surrounding the Spanish territory of Melilla breached their rights under Article 4 of Protocol 4 ECHR (prohibition of collective expulsions of aliens) and Article 13 ECHR (right to an effective remedy).

Around this time two years ago, I worked on the intervention in this case at the AIRE Centre under Nuala Mole (who has just been named the FT Legal Innovator of the Year) and Markella Papadouli. This just shows how long it takes from the start of the legal process at the European Court of Human Rights until Chamber judgment – let alone Grand Chamber judgment.

Facts of the case

The border between Morocco and the Spanish enclave of Melilla is composed of three successive walls. Spain used guards to defend the walls to ensure that migrants climbing the walls would not enter Spanish territory. After all, to do so would be to trigger Spain’s non-refoulement obligations under the Refugee Convention, and would activate Spain’s obligations to safeguard the migrants’ rights under the ECHR.

ND and NT managed to cross the first two barriers, and climbed the third, with ND reaching the top. They claimed that the Moroccan guards threw stones at them as they climbed. Eventually Spanish police assisted them on the way down.

However, they were then immediately arrested, handcuffed and returned to Morocco without a chance to explain their personal circumstances, without any administrative or judicial decision taken concerning them. They were unable to receive any legal or medical assistance, nor interpreters.

Along with 75 to 80 other migrants who had attempted to enter Melilla, they were summarily dispatched to Fez, over 300km from Melilla. They were unable to access any remedy for the treatment sustained at the hands of the Spanish guards.

Jurisdiction: the Article 1 issue

Spain argued that because the actions were not on Spanish territory but rather on border territory, that the ECHR did not apply: that the actions of the Spanish state were not “within the jurisdiction” of Spain, in the words of Article 1 ECHR. However, the Third Chamber decided that when a state exercises effective control over an individual, that will be enough for that state to have jurisdiction (paragraph 51).

Collective expulsion: the Article 4 of Protocol 4 issue

Once the Article 1 point had been settled, it was always likely that Article 4 of Protocol 4 – the ban against collective expulsions of aliens – would be violated, given that the applicants were summarily deported without access to a lawyer or the opportunity to present a claim. The court did not spring any surprises, deciding that the applicants had indeed been collectively expelled in breach of Article 4 of Protocol 4.

Right to an effective remedy: the Article 13 issue

Furthermore, the court decided not only that the lack of opportunity that the applicants had after expulsion to access a remedy from a competent authority constituted a breach of Article 13 taken together with Article 4 of Protocol 4. So too did the lack of opportunity to obtain a thorough and rigorous assessment of their requests before they were expelled.

Importance of the case

This case is important because it confirms that countries cannot get away from their human rights obligations to immigrants and asylum seekers under the ECHR simply by erecting barriers, in practice controlled by the state, but which the state labels as “not our territory”. Furthermore, this case continues the trend of cases such as Al-Skeini v United Kingdom (application no. 55721/07) and Hirsi Jamaa and others v Italy (application no. 27765/09).

The principle, backed up in this case, of a state’s effective control over individuals being sufficient to found jurisdiction, is potentially decisive for states’ obligations not only in immigration and asylum matters, but may additionally be relevant in wars and extraditions. The court’s decision should therefore be welcomed as another step towards practical and effective safeguarding of ECHR rights.

Source: ND & NT v Spain (application nos. 8675/15 and 8697/15, judgment in French only; see also English-language press summary).