On 13 February 2020, the Grand Chamber of the European Court on Human Rights (ECtHR) dismissed the claim of two migrants alleging that their removal from Spain without having their situation individually examined by the authorities was a violation of Article 4 of Protocol No.4 to the European Convention on Human Rights (ECHR) and Article 13 ECHR in the N.D and N.T v. Spain case.
The claimants, with a group of hundred other migrants, attempted to enter Spain by scaling the fences surrounding Melilla, the Spanish enclave on Moroccan coast. Right after having entered the Spanish territory, the claimants were apprehended by the police and taken back to Morocco without having the opportunity to explain their personal situation. Subsequently, they managed to enter Spain without authorisation, however expulsion orders were issued. Their administrative appeals were dismissed, as was the asylum application lodged by one of them.
Unanimously, the Grand Chamber considered that the applicants had jeopardized their right to individual removal decisions and to effective remedy by not using the official entry procedures existing.
The prohibition of collective expulsion
Article 4 of Protocol No.4 prohibits collective expulsion of aliens. As explained by the Office of the High Commissioner on Human Rights (§156), such prohibition is inherent in the right to a fair trial. Hence, the prohibition of collective expulsion differs from the principle of non-refoulement, i.e. the prohibition of removing individuals from a jurisdiction when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, such as torture or ill-treatment.
The term “expulsion” encompasses “any forcible removal of an alien from a State’s territory, irrespective of the lawfulness of the person’s stay, the length of time he or she has spent in the territory, the location in which he or she was apprehended, his or her status as a migrant or an asylum-seeker and his or her conduct when crossing the border” (§185).
Furthermore, the collective nature of an expulsion does not lie in the number of individuals expelled or in the characteristics they shared, such as origin or nationality. Rather, an expulsion is deemed collective in the absence of “a reasonable and objective examination of the particular case of each individual alien of the group” (§195). In addition, the fact that several aliens are subjected to similar decisions does not per se entail that there is a collective expulsion, as long as each decision is based on an individualised assessment. However, the Court stressed that such assessment does not amount to a right to an individual interview in all circumstances (§199).
The prohibition of collective expulsion conditioned by the applicant’s conduct
After having defined the prohibition of collective expulsion, the Court recalled the established case-law according to which there is no violation of the prohibition of collective expulsion when the lack of an individual expulsion decision is the consequence of the applicant’s own conduct (§200). According to the Court, such conduct encompasses situations “in which the conduct of persons who cross a land border in an unauthorised manner, deliberately take advantage of their large numbers and use force, is such as to create a clearly disruptive situation which is difficult to control and endangers public safety” (§201).
Nevertheless, the Court stressed that in assessing claimants’ conduct, it must be considered whether the State had provided effective access to means of legal entry to its territory.Furthermore, in case such access was provided, the Court would need to assess whether there were objective cogent reasons for claimants not to use those legal means (§201).
Regarding claimants’ conduct, the Court noted that they took advantage of the large group they were part of in order to cross the border in an unauthorised manner, and in the context of an operation that had been planned in advance (§206). Furthermore, the Court found that Spain had provided effective arrangements allowing the applicants to apply for a visa or for asylum at the border, in Morocco, and at Spain’s diplomatic and consular representations in their country of origin and in countries of transit (§212-216).
Finally, considering cogent reasons that would have objectively prevented the claimants from using the means of legal entry, the Court found that, although claimants may have had encountered obstacles in approaching the border crossing point, this was not due to the actions of Spanish authorities which were not responsible (§220). Thus, the Court considered that the claimants did not have the required cogent reasons for not using the border crossing point.
Consequently, “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” (§231).
Hence, the Court concluded there was no violation of Article 4 of Protocol No. 4. Such outcome led the Court to also conclude the absence of violation of Article 13 ECHR, the Court asserting that Spain cannot be held responsible for not making available legal remedy against claimants’ removal (§242).
A decision denying realities
By stating that “at no point did the applicants claim in this context that the obstacles allegedly encountered, should they be confirmed (emphasis added)” (§220), the Court denied the established facts that sub-Saharan migrants are facing racial profiling from Moroccan police. Indeed, as presented by the UN High Commissioner for Refugees “in reality, migrants from sub-Saharan Africa did not have access to the immigration and asylum procedures at the authorised border crossing point in Melilla, as they were systematically prevented from reaching the border on the Moroccan side” (§155). Various reports from NGOs evidenced such practice (§163).
Although racial profiling is not conducted by Spanish authorities, asserting that Spain does not have any responsibility in this phenomenon overlooks the fact that the Spanish (and more broadly, the European) externalisation policy leads to such situation.
The outcome reached by the Court leaves sub-Saharan migrants rightless. In fact, they can not reach legal entry point at the border because of racial profiling from Moroccan police (which they cannot challenge before the ECHR because of lack of jurisdiction), and they are denied individual examination of their situation by Spanish authorities based on the unlawfulness of their entry on Spanish territory.
With this decision, the Court is sentencing sub-Saharan migrants to stay in this vicious circle.