Raoul Wieland studies law and social work at McGill University in Montreal, Canada. He is undertaking a work placement with Amnesty International’s Strategic Litigation Unit at the International Secretariat in London.
On 3 October 2017, the European Court of Human Rights released its judgment in the important case of N.D. and N.T. v Spain. Considering the upcoming Grand Chamber decision, it is worth re-visiting some of the important legal safeguards at issue in the Chamber judgment and as outlined by the third-party interventions brought by Amnesty International and colleagues and the Council of Europe Commissioner for Human Rights.
In N.D. and N.T. v Spain, two applicants, nationals from Mali and Côte d’Ivoire, had argued that upon reaching the Spanish territory of Melilla on 13 August 2013, they were summarily returned to Morocco by Spain’s Guardia Civil in violation of Article 4 of Protocol No. 4 of the European Convention on Human Rights (‘the Convention’) prohibiting collective expulsion. In further violation of Article 13 of the Convention, they argued that the expulsion prevented them from exercising their right to challenge their return by means of a remedy with suspensive effect. In particular, they alleged that at no time did the Spanish authorities attempt to identify them and did not give them the opportunity to explain their individual circumstances, including the risk of ill-treatment that they feared being subjected to if returned to Morocco. Accordingly, they also alleged a violation of Article 3.
Amnesty International, in partnership with the AIRE (Advice for Individual Rights in Europe) Centre, ECRE (European Council on Refugees and Exiles), and the International Commission of Jurists (ICJ) furthermore emphasized in their submission before the Chamber of the Third Section, that States are prohibited under EU and international human rights law from refusing entry and/or returning (ie. refouling) a person to face serious violations of human rights (Hirsi Jamaa and Others, § 113–114). If States lack an effective system for identifying people within their jurisdiction and/or actively prevent people from accessing procedures for determining their protection needs, the prohibitions safeguarding people from ill-treatment will remain largely theoretical and illusory (on this principle, see Artico v. Italy § 33). States are thus obligated to ensure independent, prompt, and effective investigation of alleged violations of Convention rights, and to ensure effective remedies for such violations.
The Chamber partially agreed, finding violations of Article 4 of Protocol No. 4 and Article 13, but not Article 3. The Spanish Government’s subsequent request to refer the case to the Grand Chamber was accepted on 29 January 2018.
The Grand Chamber held its hearing on N.D. and N.T. v. Spain on 26 September 2018. With a judgment being imminent, and migrants and refugees continuing to experience human rights violations in Melilla, one can only hope that the Grand Chamber takes the opportunity to remind States of their important ‘rule of law’ obligations under international and EU human rights law with respect to the prohibition of collective expulsion and the right to seek international protection.
The Chamber Judgment: Legal Issues
Article 4 of Protocol No. 4 to the Convention provides that the “collective expulsion of aliens is prohibited.” The ‘summary return’ of migrants (also referred to as ‘push-backs’) is prohibited because it makes it impossible for authorities to conduct individualized assessments of a person’s circumstances and/or any protection needs they may wish to advance (see Hirsi Jamaa and Others, § 185).
‘Summary returns’ effectively foreclose a person’s “right to asylum” as provided by Article 18 of the CFR. According to the UNHCR, this right embraces (a) access to fair and efficient asylum procedures, and an effective remedy; (b) treatment in accordance with adequate reception and (where necessary) detention conditions and (c) the grant of asylum in the form of refugee or subsidiary protection status when the criteria are met. Notably, States have an implied obligation to pro-actively assess the risk of refoulement (see Hirsi Jamaa and Others, § 157).
The Chamber re-emphasized how the prohibition of collective expulsion should be interpreted (§ 98). Notably, the central factor to determine the collective dimension of expulsions does not lie in the number of non-nationals expelled per se or in the existence of individualised decisions only, but in the effectiveness of the guarantees provided and in the material circumstances and context surrounding the event (§ 99–100; see also Čonka v. Belgium, § 61–63; and Khlaifia and Others § 156).
The obligation to conduct individual assessments links the prohibition of collective expulsion to the prohibition of direct or indirect refoulement to a State where an individual will be at a real risk of serious human rights violations. The principle of non-refoulement is safeguarded by Convention Article 3 (see Soering v. United Kingdom, § 88), Article 19(2) and Article 4 of the Charter of Fundamental Rights of the European Union (‘CFR’), and under international human rights law (see for instance Article 3 of UN Convention Against Torture).
The related prohibitions of refoulement and collective expulsion underscore the importance of Article 13, which safeguards the right to a practical and “effective remedy” whenever a person’s Convention rights have been violated (see Hirsi Jamaa and Others, § 197; and Khlaifia and Others, § 268). As the intervention by the Council of Europe Commissioner for Human Rights to the Grand Chamber clarified, the summary expulsion of migrants prevents individuals from challenging their removal or seeking redress and makes the right to an effective remedy theoretical and illusory.
In addressing the Article 13 violation, the Chamber first observed that the Convention did not impose “an absolute obligation on a State to guarantee an automatically suspensive remedy” (§ 115), as was argued by the applicants (§ 3) and the interveners, but “merely required that the person concerned should have an effective possibility of challenging the expulsion decision by having a sufficiently thorough examination of his or her complaints carried out by an independent and impartial domestic forum” (§ 115). It then stated that the issue of the automatic suspensive nature of the remedy did not arise (§ 118) because the applicants were summarily removed by border authorities to Morocco without having been identified, having their personal circumstances considered, and having been able to challenge their expulsion decision.
An important preliminary issue argued before the Chamber was “jurisdiction.” A State’s responsibility under the Convention is engaged only where a State exercises jurisdiction within the meaning of Article 1 of the Convention. Particularly in cases where State authorities act extraterritorially, or where territorial demarcations are unclear, States may deny jurisdiction to avoid responsibility. Accordingly, the interventions by Amnesty International and colleagues both to the Chamber and the Grand Chamber stressed that: to avoid placing migrants in legal vacuums that can arise in situations such as when migrants are at the outer sides of border fences, and to ensure that State responsibility under the Convention is engaged with respect to its treatments of migrants along borders, a generous and purposeful interpretation of jurisdiction is crucial.
The Chamber adopted such a purposeful interpretation (§ 54). It observed that various authorities, including the Spanish Ombudsperson, had stated that Spain exercises jurisdiction on the land between the fences at the Melilla border crossing, and not just beyond the protective structures of that crossing. The Chamber further observed that where State authorities exercise effective control over an individual, whether inside the State’s territory or on its land borders, de facto or de jure control is exercised.
The question of entry to a State’s territory is therefore not decisive when assessing whether a State is exercising or has exercised its jurisdiction. In this case, the Chamber held that “from the point at which the applicants climbed down from the border fences they were under the continuous and exclusive control, at least de facto, of the Spanish authorities” (§ 54). This interpretation thus extends the Court’s previous rulings on extraterritorial jurisdiction, such as where persons are intercepted on the high seas (Hirsi Jamaa and Others) or arrive by sea at a port (Sharifi and Others), to the context of push-back operations along border fences. It is thus established, as the interveners emphasized, that where State authorities take action “the effect of which is to prevent migrants from reaching the borders of the State or even to push them back to another State,” this “constitutes an exercise of jurisdiction within the meaning of Article 1of the Convention which engages the responsibility of the State in question…” (Hirsi Jamaa and Others § 180).
Commentary and Conclusion
As mentioned above, the Grand Chamber might want to re-emphasize that the ‘rule of law’ principle requires that States’ actions must be ‘in accordance with the law,’ including the EU asylum acquis, the most pertinent being the Recast Asylum Procedures Directive. This Directive provides, for instance, that border procedures shall ensure that persons willing to apply for international protection: “(a) have the right to remain at the border or transit zones of the Member State; (b) are immediately informed of their rights and obligations; (c) have access to interpretation; (d) are interviewed […] by persons with appropriate knowledge of the relevant standards applicable in the field of asylum and refugee law; (e) can consult a legal adviser or counsellor [..].”
In order for these and other safeguards not to be illusory, however, States must interpret their national law in a manner consistent with EU law and must ensure that they do not rely on an interpretation which would be in conflict with the fundamental rights protected by the EU legal order or with other general principles of EU law (M.M. v Minister for Justice, § 93). The right to a defence and to be heard are two such fundamental principles of EU law (M.M. v Minister for Justice, § 81–83). In Sophie Mukarubega v. Préfet de police and Préfet de la Seine-Saint-Denis, the CJEU held that “the right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely” (§ 87, emphasis mine). Collective expulsion, as carried out in Melilla, is not compatible with this principle, nor with the numerous other safeguards discussed above.
To conclude, as the intervener submission before the Grand Chamber by Amnesty International and colleagues stressed, the referral provides the Grand Chamber with an important opportunity to unambiguously affirm States’ obligations under international and European human rights law with respect to the prohibition of collective expulsion of non-nationals, and to the ability of non-nationals to effectively exercise their right to seek international protection.