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RSCAS 2020/21 the Strasbourg Court Judgement N.D. and N.T. V RSCAS 2020/21 Robert Schuman Centre for Advanced Studies Migration Policy Centre The Strasbourg Court Judgement N.D. and N.T. v Spain A Carte Blanche to Push Backs at EU External Borders? Sergio Carrera European University Institute Robert Schuman Centre for Advanced Studies Migration Policy Centre The Strasbourg Court Judgement N.D. and N.T. v Spain A Carte Blanche to Push Backs at EU External Borders? Sergio Carrera EUI Working Paper RSCAS 2020/21 Terms of access and reuse for this work are governed by the Creative Commons Attribution 4.0 (CC- BY 4.0) International license. If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper series and number, the year and the publisher. ISSN 1028-3625 © Sergio Carrera, 2020 This work is licensed under a Creative Commons Attribution 4.0 (CC-BY 4.0) International license. https://creativecommons.org/licenses/by/4.0/ Published in March 2020 by the European University Institute. Badia Fiesolana, via dei Roccettini 9 I – 50014 San Domenico di Fiesole (FI) Italy Views expressed in this publication reflect the opinion of individual author(s) and not those of the European University Institute. This publication is available in Open Access in Cadmus, the EUI Research Repository: https://cadmus.eui.eu Robert Schuman Centre for Advanced Studies The Robert Schuman Centre for Advanced Studies, created in 1992 and currently directed by Professor Brigid Laffan, aims to develop inter-disciplinary and comparative research on the major issues facing the process of European integration, European societies and Europe’s place in 21st century global politics. The Centre is home to a large post-doctoral programme and hosts major research programmes, projects and data sets, in addition to a range of working groups and ad hoc initiatives. The research agenda is organised around a set of core themes and is continuously evolving, reflecting the changing agenda of European integration, the expanding membership of the European Union, developments in Europe’s neighbourhood and the wider world. For more information: http://eui.eu/rscas The EUI and the RSCAS are not responsible for the opinion expressed by the author(s). Migration Policy Centre (MPC) The Migration Policy Centre (MPC) is part of the Robert Schuman Centre for Advanced Studies at the European University Institute in Florence. It conducts advanced research on the transnational governance of international migration, asylum and mobility. It provides new ideas, rigorous evidence, and critical thinking to inform major European and global policy debates. The MPC aims to bridge academic research, public debates, and policy-making. It proactively engages with users of migration research to foster policy dialogues between researches, policy-makers, migrants, and a wide range of civil society organisations in Europe and globally. The MPC seeks to contribute to major debates about migration policy and governance while building links with other key global challenges and changes. The MPC working paper series, published since April 2013, aims at disseminating high-quality research pertaining to migration and related issues. All EUI members are welcome to submit their work to the series. For further queries, please contact the Migration Policy Centre Secretariat at [email protected] More information can be found on: http://www.migrationpolicycentre.eu/ Disclaimer: The EUI, RSCAS and MPC are not responsible for the opinion expressed by the author(s). Furthermore, the views expressed in this publication cannot in any circumstances be regarded as the official position of the European Union. Abstract This Paper examines the N.D. and N.T v Spain judgment by the European Court of Human Rights (EtCHR) of 13 February 2020. The Grand Chamber of the Strasbourg Court concluded that expedited expulsions to Morocco (pushbacks or ‘hot returns’) by Spanish authorities at the border fences in Melilla did not amount to a violation of the prohibition of collective expulsions under Article 4 Protocol 4 of the European Convention of Human Rights (ECHR). Counterintuitively, the Court’s ruling is not a carte blanche for states to engage in automatic expulsions or push backs of irregular immigrants and asylum seekers at EU external borders. The Grand Chamber has confirmed that the notion of expulsion for ECHR purposes covers non-admission border management policies, and it applies to every individual irrespective of seeking asylum or not. It has also held that governments must not instrumentally frame certain parts of their territory through law as ‘non-territory’ to escape from their ECHR obligations in the context of border policies. The Grand Chamber has also demanded that States provide genuine and effective access to legal entry mechanisms for purposes of asylum and employment. The N.D. and N.T v Spain judgement is, however, fraught with legal inconsistencies and factual inaccuracies. It denies justice to voiceless victims of human rights violations. The ruling’s inconsistent legal argumentation leaves crucial nuances to avoid arbitrariness and rule of law violations in states’ border policies. By focusing on the individuals’ own conduct instead of the Spanish authorities’ compliance with the ECHR, the judgement displaces the individual from the heart towards the periphery of the ECHR system. It wrongly applies an ‘own conduct doctrine’ to human rights which are absolute in nature and accept no exception. The judges’ arguments are also factually wrong, chiefly in respect of the practical accessibility by the applicants to legal channels for admission to Spain. The Grand Chamber’s choice to first assess whether the individual is worthy of human rights contradicts Article 1 ECHR and the Strasbourg Court mandate to impartially and independently supervise States parties’ compliance with everyone’s human rights within their jurisdiction. The ruling provides an inequivalent level of human rights calling for lower protection standards in contradiction to those required by United Nations human rights bodies. It is also incompatible with the Spanish government’s obligations under EU law to comply with human rights in border control and surveillance policies, and the fundamental right to asylum. Keywords European Union; Migration; Asylum; European Convention on Human Rights; Pushbacks; Border Fences; Hot Returns; Ceuta and Melilla; Right to Asylum; Prohibition against Collective Expulsions; Non-Refoulement I cannot accept that humans can treat humans like that. When my rights were violated by Spain, harm was done to me. What I would like for this Court is that measures are taken to stop such harm from being done to other people. I would like that justice exists even for those who are poor, vulnerable and don't have a voice Oral Statement by Mr. N.D. Lawyer before the Grand Chamber of the European Court of Human Rights, Hearing, Strasbourg, 16 September 2018. Introduction* On 13 February 2020 the Grand Chamber of the ECtHR in Strasbourg delivered the much awaited judgement N.D. and N.T. v Spain.1 By a unanimous vote, the judges ruled in favour of the Spanish government and that the automatic expulsions of the two applicants to Morocco did not amount to a violation of Article 4 Protocol 4 and Article 13 of the European Convention of Human Rights (ECHR). Since 2005, the Spanish government has implemented a systematic official policy of ‘push backs’ or ‘hot returns’ (devoluciones en caliente) of people entering irregularly through the border fences barriers in Melilla and Ceuta.2 This policy has been subject to widespread criticism by international and regional human rights actors,3 particularly since it became part of the Organic Act 4/2015 on safeguarding the security of citizens or Public Security Act of 30 March 2015.4 The case before the Strasbourg Court dealt with one applicant from Mali and another from Ivory Coast, who together with other individuals tried to cross the Spanish border fence in Melilla.5 They alleged that they were subject to disproportionate violence and expedited expulsions by the Spanish authorities (Guardia Civil) who reportedly handcuffed them and handed them over to the Moroccan * The author would like to express his gratitude to Professor Andrew Geddes (MPC, EUI), Professor Jens Vedsted-Hansen (Aarhus University, Denmark) and Professor Valsamis Mitsilegas (Queen Mary University of London) for their comments and insights on a previous draft of this paper. 1 ECtHR, Case of N.D. and N.T. v. Spain, Applications nos. 8675/15 and 8697/15, Grand Chamber, Strasbourg, 13 February 2020. 2 However, investigative journalism has reported that Spanish authorities had implemented this practice as an unofficial policy since 2001. Refer to El Diario (2013), España lleva 12 años expulsando ilegalmente inmigrantes en Melilla, 19 November 2013; Available at https://www.eldiario.es/desalambre/inmigrantes-expulsados-ilegalmente-Melilla- ultimos_0_198430239.html 3 A. López-Sala (2020), Keeping up Appearances: Dubious legality and migration control at the peripheral borders of Europe. The cases of Ceuta and Melilla, in S. Carrera and M. Stefan (eds), Fundamental Rights Challenges in Border Controls and Expulsions of Irregular Immigration in the European Union: Complaint Mechanisms and Access to Justice, Routledge Studies in Human Rights, pp. 26-42. See also I. Barbero and M. Illamola-Dausa (2020), Deportations without the right to complaint: cases from Spain, in S. Carrera and M. Stefan (eds), Fundamental Rights Challenges in Border Controls and Expulsions of Irregular Immigration in the European Union: Complaint Mechanisms and Access to Justice, Routledge Studies in Human Rights, pp. 43-63. 4 Ley Orgánica 4/2015 de protección de la seguridad ciudadana or ‘Ley Mordaza’, BOE núm. 77, 31/03/2015. According to the Tenth Additional Provision (Special Rules for Ceuta and Melilla). ‘1. Aliens attempting to penetrate the border containment structures in order to cross the border unlawfully, and whose presence is detected within the territorial demarcation lines of Ceuta or Melilla, may be returned in order to prevent their unlawful entry into Spain.
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