March 26, 2020
By Hanaa Hakiki
On 13 February 2020, the Court published its long awaited Grand Chamber judgment in the case of N.D. and N.T. v. Spain, the first case addressing the Spanish policy of immediate expulsions at the Ceuta and Melilla enclaves. In a speech the Court’s president had announced that the judgment would be “instrumental to the issue of push backs” in Europe, the most “burning issue in European politics today” (M.A. v Lithuania; concurring opinion, §1). Legally, the case of N.D. and N.T. addressed the applicability of the prohibition of collective expulsions to push backs at European land borders. The judgement has already been analysed in detail and widely criticised for its incompatibility with EU law, the principle of non-refoulement and Spain’s obligation to protect unaccompanied minors. Though the judgment brings in an entirely new approach, some have questioned the impact of the judgment on the Court’s approach to push backs more generally. This blogpost considers the application by the Court of its new approach in light of the factual evidence in the case, and whether this allows for any conclusions to be drawn as to the broader impact of this judgment on the situation at European borders. Thus the blogpost will first assess the new legal test in light of the Court’s jurisprudence on the terms “genuine and effective.” and secondly how the new test was applied in this case. Third, the blogpost will look at how the Grand Chamber assessed evidence in this case. The final section explores the potential significance of this judgement.
The prohibition of collective expulsion of aliens was included by the drafters of the 4th Protocol to the European Convention of Human Rights for, “all those who have no actual right to nationality in a State, whether they are passing through a country or reside or are domiciled in it, whether they are refugees or entered the country on their own initiative, or whether they are stateless or possess another nationality [emphasis added]” (Travaux Préparatoires, p.505). This provision thus was meant to apply irrespective of a person’s status and means or grounds of entry, as a complement to the specific procedural protections against expulsions of lawfully residing aliens under article 1 of protocol 7 ECHR.
In its judgment in N.D. and N.T., the Grand Chamber confirmed that jurisdiction could not be excluded at border zones (§§104-110). It also acknowledged that enough evidence had been submitted as to the summary return of the applicants (§88) as part of a state policy. The Court confirmed that this return constituted an expulsion in the meaning of article 4 protocol 4 ECHR (§191) and that it was conducted without any individual examination (§206) – and therefore collective. Thus, the Grand Chamber confirmed that the applicants’ case was solid both factually and legally. However, the judges unanimously dismissed the case by pulling a legal rabbit out of their hats and referring to an entirely new test. In doing so, the judgement that was awaited (in Spain and elsewhere) to clarify a situation created even greater legal uncertainty. A number of push back cases are still pending in front of Strasbourg.
The new “own culpable conduct” test and the existence of “genuine and effective” access to means of legal entry
Own culpable conduct: a well-established caselaw?
The Grand Chamber presents this new test as an application of “well-established caselaw” (§200). Yet the jurisprudence of the Court on “own culpable conduct” under article 4 protocol 4 ECHR includes two cases only. In the first one, the applicants complained of the joint treatment of their asylum applications and the Court considered that this was a result of the applicants’ “own culpable conduct” for having presented their asylum claims jointly. In the second case, the applicant had refused to present an identification document, so that he was expelled without an individual identification. In both cases, there was at least an attempt of the authorities to assess the applicants’ circumstances. In N.D. and N.T. – as any push back operation – the authorities are unwilling to carry out an individualised examination as a matter of principle. By ignoring this fact, the Grand Chamber punishes the victims, focusing on States’ rights “to take measures against foreigners circumventing restrictions on immigration.” This approach was already announced two months earlier in Ilias and Ahmed v. Hungary (§213).
The new “own culpable conduct” test: a shaky starting point
In N.D. and N.T., the basis of application of the new test seems to be a situation where, “persons who cross a land border in an unauthorised manner, deliberately take advantage of their large numbers and use force, … as to create a clearly disruptive situation which is difficult to control and endangers public safety” (§201). First, an intention to disrupt and endanger public safety – rather than an intention to cross irregularly – seems to be required, given the use of “deliberately” and “as to create.” However in N.D. and N.T. the individual intentions of the applicants to disrupt and endanger public safety were never considered. Rather a collective intention was presumed. Equally, the expression “use of force” usually depicts violent acts. Yet in N.D. and N.T. no argument or evidence was advanced as to violent acts by those crossing on that day. To the contrary, the evidence in the case was that of disproportionate violence being used by the authorities. It is unclear therefore whether “use of force” in this case means the use of muscular force to climb a fence, and if so where the line should be drawn. Would the use of muscular force to walk across a border line be enough?
What does “genuine and effective” mean?
The second step of the Grand Chamber was to assess whether the State “ma[de] available genuine and effective access to means of legal entry” (§209). Notably it is neither “access to legal entry” nor “means of legal entry” which are considered, but a doubled up version of the two. This announces the diluted nature of the requirement.
Yet, what does “genuine and effective” mean? In the context of collective expulsions, the expression was used by the Grand Chamber in Khlaifia v. Italy (§248). It originally stems from the Court’s jurisprudence on article 6 ECHR and its assessment of the States’ obligation to secure “the genuine and effective enjoyment of the rights guaranteed under article 6 ECHR.” (R.D. v. Poland, §44), including the existence of “a realistic opportunity” to engage in proceedings “in a concrete and effective way” (R.D. v. Poland, §51; Staroszczyk v Poland, §138). In considering the applicant’s responsibility for any ensuing obstacle, the Court examines what is to be reasonably and justifiably expected from them (Kunert v. Poland, §36). The term “effective” itself is the subject of a much broader jurisprudence in relation to the effectiveness of domestic remedies. It means available in theory and in practice. In particular, an effective remedy is one that has a sufficiently clear legal basis (Sürmeli v. Germany [GC], §§110-112) and which has already been successfully used (Apostol v Georgia, §39) and thus offers reasonable prospects of success (Scoppola v. Italy (no. 2) [GC], §71; Mikolajova v Slovakia, §34). “Effective” does not include measures which are entirely discretionary (Hassan & Tchaouch v. Bulgaria [GC], §100; Khan v. U.K, §§45-47). Though the Court in N.D. and N.T. was not considering an article 6 ECHR claim or whether a remedy was effective, it would not be unreasonable to expect from it a similar approach as to what constitutes a “genuine and effective” access to means of legal entry.
In Khlaifia the Grand Chamber had adopted a very diluted meaning of the terms when considering what constitutes a genuine and effective opportunity to raise arguments against an expulsion in the context of article 4 protocol 4 ECHR. Indeed, the Court concluded that such opportunities included the possibility to raise arguments during meetings with Tunisian diplomatic officials (§250). Though this had raised serious concerns, the Grand Chamber was expected to sharpen its jurisprudence in N.D. and N.T. and take a more rigorous and meaningful approach. Unfortunately, these expectations were not met.
The application of the new test to the facts of the case in N.D. and N.T.
In this case, the judges assessed access to two means of legal entry: humanitarian visas for third country nationals from the nearest Spanish consulate in Morocco and asylum claims at the Spanish border post of Melilla.
The legal basis for the issuing of a humanitarian visa to third country nationals at Spanish embassies and consulates at the time was a Royal Decree and a ministerial circular letter to embassies requesting them to apply said Royal Decree (§224). Arguably such legal basis lacked clarity. Further, these documents only granted ambassadors a discretionary power to issue such visas in certain circumstances (idem). Both characteristics should have been enough to consider such means of legal entry as non-effective.
Moreover, the only evidence which the Spanish government provided to establish the effectiveness of these means of legal entry was a document related to a completely different framework. Indeed, it recorded that 4 applications for such humanitarian visas had been registered by Moroccan citizens – thus not third country nationals and not in application of the Royal Decree and the ministerial circular letter (§225). Further, these applications had only been registered and there was no evidence of them ever being granted or even examined. All of these points were highlighted orally (from 29:24) and UNHCR explained at the hearing that this procedure was in practice only open for family reunifications for relatives of persons who were already granted refugee status. The Court still concluded to the existence of a “genuine and effective access” to those humanitarian visas for third country nationals as means of legal entry from Morocco.
Asylum claim at the Spanish border post
In relation to access to the Spanish border post in Melilla to register an asylum claim, the Court noted independent reports of racial profiling making it impossible for black persons to use that avenue (CPT, §58; UNHCR, §155; Council of Europe’s Commissioner for Human Rights, §143). However the Court clearly expressed that the effectiveness of access in practice is wholly irrelevant, because the Spanish authorities were not responsible for these practices (§§218 and 220).
Establishing facts: independent reporting vs. State lawyers’ oral submissions
When facing contradicting versions of accounts, the Court’s approach has been to give weight to authoritative independent reporting (M.S.S., §227; Georgia v. Russia [I], §138; Hirsi, §118, inter alia), such as reports from UNHCR, the Council of Europe’s Commissioner for Human Rights or EU bodies (M.S.S., §§346-350; F.G. v. Sweden, §125-127). In N.D. and N.T., when examining evidence as to the existence of a “genuine and effective access to” registering an asylum claim at the Spanish border post, the Court took a different approach.
Though in the end it considered it irrelevant (see above), the Court spent some time assessing evidence on access to the Spanish border post. The fact that this was impossible for black persons had been highlighted in front of the Chamber by third party interveners (UNHCR and the Council of Europe’s Commissioner for Human Rights) already. In fact, in its submissions UNHCR also pointed that before the creation of an asylum office at the border post, there was no mechanism for anyone to apply for asylum at the border. In addition, similar reporting by independent organisations (the Spanish Ombudsperson, p.288); Amnesty International, p.40) was also submitted. Further, before the Grand Chamber hearing in N.D. and N.T, the Court requested data from the Spanish government on asylum claims at the border post. The document provided by the Spanish government confirmed two things. One, that in 2014 there had been no registered asylum claims at the border post before the applicants’ expulsions. Second, that in fact the first asylum claims at the Melilla border post were registered on 20 September 2014 only – so once the border post asylum office was open. These came from a Palestinian and a Syrian citizen. By providing data on asylum claims in 2014, this document completed another document from the Ministry of Interior on registered asylum claims at the border post between 2015 and 2017. That document had been published further to a parliamentary enquiry which sought to address racial profiling at the border post. It confirmed that between 2015 and 2017, only 2 persons from Sub-Saharan Africa had registered asylum claims at the Melilla border post. An investigative article from El Diario revealed that both persons were women who had covered their skin colour under a full burka. The Ministry of Interior document and the article were both referred to at the Grand Chamber hearing (from 31:16).
Nevertheless, the Grand Chamber judges concluded that between January and September 2014, 6 applications were made at the relevant border crossing from citizens of Algeria, Burkina Faso, Cameroon, Congo, Cote d’Ivoire and Somalia (§213). This may be grounded in a sentence that the Spanish government’s lawyer said at the hearing, to the effect that before the applicants’ expulsions, there had been 21 asylum claims at police stations and 6 at the border crossing (from 01:01:27), in contradiction with the evidence he had submitted.
In these circumstances, the Court concluded that the applicants had made “general allegations” as to the impossibility for black persons to access the border post (§217) and that “the various reports… are not conclusive as to the reasons and factual circumstances underlying these allegations” (§218), without further explanation. The impossibility for black persons to access the Spanish border crossing in Melilla is such a known reality in Spain that the Grand Chamber’s judgment in N.D. and N.T. sparked a strong reaction. The Spanish Association of Judges for Democracy described the factual basis on which the Strasbourg Court grounded its judgement as “chimeric”. The reaction of the Spanish General Council of Lawyers was similar, whilst a number of political personalities have demanded from the Spanish government to disregard the Strasbourg decision.
The implications of the N.D. and N.T. judgment on the rights of migrants at borders
When being racially profiled constitutes “own culpable conduct”
After noting that any reported racial profiling is not Spain’s responsibility (§221), the Court concludes that there was no violation of article 4 protocol 4 ECHR (§222), thus implying that the “own culpable conduct” test is fulfilled. Therefore in the reasoning of the Grand Chamber, not having access to theoretical means of legal entry due to being black and racially profiled does not constitute “cogent reasons” to not use such means (§229) but rather “own culpable conduct.” Historically societies have designated victims of institutional racism as culprits. However such reasoning is not acceptable today, especially from the highest human rights court in Europe. Unfortunately such reasoning seems to be more than the result of clumsy drafting, if one is to go by judge Pejchal’s dissenting opinion. In it the judge argues that the Strasbourg Court is for the free, tax-paying, citizens of Europe, and that therefore the case of N.D. and N.T. should have been dismissed from the start (section 3).
At borders, migrants are cattle, not humans
It is not the first time that the Strasbourg Court refuses to afford migrants and refugees the protection that human rights defenders think they should have. Nor are those who defend the rights of migrants and refugees naïve idealists who ignore the hierarchy existing in the Strasbourg jurisprudence between citizens and non-citizens as right holders, and amongst non-citizens between those who do or do not have certain attributes, such as residency rights or accepted vulnerabilities. At the very bottom of this hierarchy comes the young, male, undocumented migrant who is perceived as not vulnerable. Yet it is precisely because they are rarely perceived as right holders that undocumented migrants are considered as particularly vulnerable by all other regional human rights courts, namely the African Commission on Human and Peoples’ Rights (OSJI v. Cote d’Ivoire, §141) and the Inter-American Court of Human Rights (Nadege Dorzema et al. v. Dominican Republic, §152).
Last year ECHR Judge Pinto de Albuquerque wrote, ““To allow people to be rejected at land borders and returned without assessing their individual claims amounts to treating them like animals. Migrants are not cattle that can be driven away like this” (M.A. v Lithuania, Concurring Opinion, §54). These words echo those of René Cassin in his plaidoyer for the inclusion of the right to be recognised as a person before the law into the Universal Declaration of Human Rights. Back in the 1940s Cassin referred to slavery and defended this right as the only way to ensure that no category of human would ever be considered again, “as chattel, not as beings who could have rights.” René Cassin noted,
“In the present state of the world it [is] inevitable that States should distinguish between their own nationals and foreigners… [B]ut there [are] degrees between absolute equality and the denial of all rights, and it [is] the United Nations’ duty to ensure not only that human beings [have] juridical personality, but also that they should be guaranteed certain elementary rights indispensable to their wellbeing and to their dignity. The recognition of everyone as a person before the law [is] the first and most important step” (UDHR Travaux Préparatoires).
The right to be recognised as a person before the law (or right to legal/juridical personality) is essentially the right to, “be a subject, and not an object, of the law” (CCPR Travaux Préparatoires). This right was never expressly included in the European Convention of Human Rights and its protocols because of its inferred existence through, in particular, procedural rights such as the one guaranteed under article 4 protocol 4 ECHR (CoE Report, §155). This judgement perhaps demonstrates René Cassin’s point at best, that unfortunately, a specific provision protecting any human’s right to legal personality is necessary. Indeed, the Grand Chamber in its judgment seems to convey that if someone – or the way they enter – can be labelled as illegal or irregular, that person can be treated as cattle. Thus the judgement could be interpreted as a confirmation that in the European system – political and legal – the young, male, undocumented migrant is a mere illegal object which is only to be dealt with by the law without ever being considered as a legal subject who holds rights. In denying the figure of the “illegal” or “economic” migrant” legal personality, it is his very humanity which is being denied. It is also the founding principle of human rights law which is being trumped, namely that humans, simply because they are humans (not refugees), are right holders.
Hanaa Hakiki is a legal advisor within the Migration Programme of the European Center for Constitutional and Human Rights, which supported the litigation undertaken in ND and NT v Spain.
Acknowledgments: This blog post reflects a collective work process in the ECCHR Migration Programme and beyond. Further, I would particularly like to thank Vera Wriedt, Carsten Gericke and Grusa Matevzic for their comments.