May 06, 2020
By Francesco Luigi Gatta, Research Fellow, UCLouvain, member of EDEM (Equipe droits européens et migrations)
On 24 March 2020, the ECtHR delivered its judgment in Asady and Others v. Slovakia, which concerned the expulsion to Ukraine of a group of Afghan nationals. With a controversial ruling (passed by a slight majority of 4 votes to 3 and accompanied by dissenting opinions) the Court declared that there had been no violation of the prohibition of collective expulsion under the terms of Article 4 of Protocol 4 ECHR.
The judgment is relevant for two reasons. First, it provides some (worrying) clarifications regarding the individualised examination of an alien prior to the expulsion, focusing on the conditions of the individual interview. Second, coming shortly after the Grand Chamber’s ruling in ND and NT v. Spain, it gave the Court an opportunity to reflect on the applicability of the exception of the “own culpable conduct” developed therein and to measure its impact on a case of collective expulsion at land borders. As it will be explained, however, this “hot potato” was only dealt with in the dissenting opinion and not by the Court, which avoided expressing itself on that point. Thus, it remains still unclear whether and how the new exception relates to the procedural test of the individualised assessment required by Article 4 of Protocol 4.
In general, Asady adds a new chapter to the fast-growing case law concerning this provision. After remaining ‘dormant’ for quite some time, it now represents a “rising star” in the migration-related litigation in Strasbourg, to such an extent that, basically, all the States forming the perimeter of the EU external borders have been involved in potential cases of collective expulsions. While initially the Court dealt with border practices aimed at tackling maritime migratory flows (e.g. Hirsi, Sharifi, Khlaifia), following the refugee crisis, it is now being called to assess the compatibility with the Convention of those conducted at land borders, including the so-called push backs. We will see if Asady will pave the way for similar decisions in cases involving the Eastern European borders which are pending against Croatia, Poland, Hungary, Latvia.
This case concerns the attempt of 19 Afghan nationals to irregularly enter Slovakia in 2014. At night, near the border with Ukraine, the applicants were found hidden in a truck, whose driver fled after the police followed the vehicle. They had no identity documents and were part of a larger group of 32 Afghans apprehended by the Slovak police. Thus, the picture is: an organised, irregular border crossing, involving several migrants, carried out in a clandestine manner and with external support (these factual circumstances are underlined in light of the N.D. & N.T. exception and to verify whether the criteria of the “own culpable conduct” test may also be applicable here in Asady. I will come back on that later).
After being apprehended, the applicants and the other Afghans were brought to a police station, where they were processed by police officers with the support of a Persian-language interpreter. Some Afghan nationals belonging to the broader group requested asylum and were transferred to an asylum seekers’ reception centre. According to the documentation submitted by the Slovak government, each interview lasted exactly ten minutes, questions were standardised and the answers recorded were identical, the only difference being in the amount of money applicants declared to have in their possession. Following the interviews, expulsion decisions – rendered individually but with the same wording – were issued in respect of all the applicants. Later in the evening of the same day, they were removed to Ukraine.
Complaints and judgment of the Court
Invoking Article 4 of Protocol 4 and Article 13 ECHR, the applicants complain about their expulsion, carried out, in their view, without a proper individual examination of their cases. They furthermore argue that their asylum claims had been ignored, that they had been denied access to asylum procedures, information and assistance, and that they had no effective remedy against the expulsion. More specifically, the collective character of the expulsion would clearly emerge from the circumstances of the procedure leading to their removal. They had been interviewed for 10 minutes only, with no extra-time to further explain their cases; the questions were standardised, requiring essentially yes/no answers. Police officers made no proactive effort to perform a more accurate examination and there was only one interpreter for many persons who was only available for a few hours. They had been summarily and rapidly processed and expelled as a group, which is further confirmed by the fact that all the expulsion decisions had the same wording and were issued and implemented within 24-hours of their arrival.
The Government replies that each applicant had been individually and properly examined by the police, who have “longstanding experience” of interviewing illegal migrants (§55) and that the assistance provided by the interpreter had been adequate. The identical wording of the answers recorded during the interviews does not entail a collective approach, rather it is explainable by the fact that the applicants had travelled as a group, thus coordinating their statements on the same facts and motives, which is typical of migrants “arriving in Slovakia in an organised fashion with the help of smugglers” (Ibid.). In any case, the transcripts differ in respect of the amounts of money in possession of the applicants, which shows that the police had treated them individually. As for the asylum procedures, since none of the applicants mentioned any risk of persecution in their home country (rather, it results from the transcripts that they had left Afghanistan for economic reasons and wished to go to Germany, thus not intending to seek asylum in Slovakia), there had been no need to deepen the examination. Asylum procedures were accessible, as demonstrated by the fact that 12 other Afghans, members of the group intercepted at the border, had requested asylum and had been consequently transferred to a reception centre, rather than being removed to Ukraine.
The Court, first of all, recalls that Article 4 of Protocol 4 does not guarantee the right to an individual interview in all circumstances (Khlaifia, §248; N.D. & N.T., §199); moreover, the issuing of similar decisions does not per se lead to conclude in the sense of the collective nature of the expulsion (Hirsi, §184; Sultani, §81). With that being said, it rules that, despite the short interviews, the applicants had been granted the genuine and effective possibility of submitting arguments against their expulsion and that those arguments were examined in an appropriate manner by the national authorities.
Comments: the individualised interview and its conditions
I will not address here the profile of the admissibility – which nonetheless is interesting as regards the use of Facebook and social media as a mean of contact between applicants and their representatives – rather, focusing on the merits, I will consider the core issue of the conditions of the individual interview.
A 10-minute interview is considered as a sufficient method of assessment by the Court, as it allowed a proper individual examination of the applicants. It is not a matter of quantity, but of quality of the time used for the interview: the duration does not count, as long as it provides a “genuine and effective opportunity” to submit an argument against the expulsion. That being said, frankly, it remains unclear how 10 minutes could have been sufficient for the police to identify an applicant, explain how the national asylum procedure works, carry out an investigative interview, examine all the reasons not to expel him and provide easily understandable information about available legal remedies: all of that, through the translation from Slovak to Persian and vice versa. It is suggested by the Court that the short duration of the interviews “may be a consequence of the applicants not stating anything that would require a more thorough examination” (§66). However, this is at odds with its previous case-law where it had established that, when dealing with undocumented migrants, border guards shall not limit themselves to passively receive information, but proactively attempt to clarify the reasons behind the applicants’ presence at borders (M.A. and Others v. Lithuania, §113). This is also variously recommended by EASO and CoE.
Not only did the interviews have the exact same duration, but also the same, standardised questions. While such an approach is strongly discouraged by EASO, OHCHR and UNHCR – which all recommend using open questions, engage in mutual communication and, when using standard questionnaires, to further conduct a private, more personal interview –, it was not found to be problematic for the Court, in so far as it allowed the factors that had led the applicants to leave their country of origin to be established. In Asady, however, not just the questions, but also the recorded answers, were identical: again, this is not a problem for the Court, according to which “it may be presumed that the details of their journey might have been similar as well, since they [the applicants] had been travelling as a group” (§66). This presumption is inconsistent, as it mistakenly equates the how and the why of the migratory movement: the fact that there are similarities in the applicants’ journey does not mean that the reasons to leave Afghanistan were the same. The only difference in the answers is in the amount of money the applicants declared to have in their possession, and this is decisive for the Court, as it “points to an individualised approach” (Ibid.). But is the different amount of money – which is an objective fact, ascertainable not necessarily through an interview – really an indicator that the “personal circumstances had been genuinely and individually taken into account”? Is this really sufficient to have a “reasonable and objective examination of the particular case”? The Court’s conclusion is quite baffling, also in consideration of the requirements prescribed under EU law in terms of the quality of the interview (namely, under Articles 14-16 of the asylum procedure Directive, which is nowhere mentioned in the judgment Asady).
The applicants were interviewed during the night and in the early morning hours, there was only one interpreter available and, as the Court itself notes, the times of some interviews overlapped, so that in some cases two police officers and the same interpreter were recorded as being present at three different interviews. This series of environmental factors – timing and modes of the interviews, conducted at night, cumulatively, under extreme time pressure, without sufficient linguistic assistance – is not relevant for the Court, being “not in itself sufficient to justify the applicants’ view that the interviews were not conducted on an individual basis” (§64). However, in the part on the admissibility, the Court itself affirms that “it cannot ignore the generally precarious conditions of asylum seekers” (§36), while in previous judgments had expressed the crucial importance of interpretation in border and asylum procedures, as well as of access to reliable, active communication with the authorities (M.A., cit., §109; M.S.S. v. Belgium and Greece, §301; Hirsi; §133; Abdolkhani and Karimnia v. Turkey, §§107-117).
ND & NT and own culpable conduct test
The ruling in Asady came a few weeks after the Grand Chamber’s judgment in N.D. & N.T. (comments and analyses, among others, here and here), offering the Court the chance to promptly test the newly-established exception based on the applicants’ culpable conduct. As conceived and applied in the Spanish case, this novel criterion allows States, under certain circumstances, to abstain from conducting an individualised examination, thereby excluding a violation of the prohibition of collective expulsion.
From how I read ND & NT, the new exception is built on 4 requirements, which are scattered across various paragraphs of the judgment, belonging both to the sections titled “general principles” and “application to the present case”. The new exception generally applies, apparently, to land borders only, as, on the one hand, the Grand Chamber explicitly and repeatedly refers to “situations…of persons who cross a land border” (§§166, 201, 206) and, on the other, the 4 conditions for its application would hardly be identifiable all together at sea borders.
– 1st requirement: irregular entry. In ND & NT the Grand Chamber refers to the crossing of a land border “in an unauthorised manner” (§§166, 201, 206, 211); similarly, it refers to a person who “did not make use of the official entry procedures” (§231) or who attempts to enter the territory “at an unauthorised location” (§242).
– 2nd requirement: entry manners (aggravating circumstances). The Court identifies a number of relevant circumstances, which, surrounding the irregular entry, can contribute to make it not excusable: a) large number of migrants (§§166, 201, 206, 210, 211, 231, 242), also referred to as border crossing “en masse” (§166) or “storming” of the border fences (§231); b) use of force (§§201, 210, 211, 231); c) creation of a disruptive situation (“to create a clearly disruptive situation which is difficult to control”, §201); d) endangerment of the public safety (“a disruptive situation which… endangers public safety”, §201); e) external support and planning (“crossing of a land border… in the context of an operation that had been planned in advance”, §206).
– 3rd requirement: availability of legal entry procedures. The Grand Chamber literally refers to “genuine and effective access to means of legal entry” (§201, similarly §§210, 211, 231, 242). As additional sub-requirements, these means of legal entry have to be: a) available in a genuine and effective manner (§210) and b) not having be used without “cogent reasons” (§§201, 210, 211).
– 4th requirement: absence of risks in the country of expulsion. This one may be read between the lines of N.D. & N.T. as the Grand Chamber recalls and highlights (§226) that the Court had found, in a previous decision of 2015, the complaint under Article 3 inadmissible. It furthermore stresses that (§230), in that case, even if the applicants had been individually examined, their removal to Morocco would have been harmless, as there was no indication that they would have been exposed to any risk of ill-treatment. It seems thus that the Court also requires the country of destination to be considered “safe” for those who are expelled without an individual examination.
Two-tier test: procedural (individualised examination) + own culpable conduct (N.T. & N.T. exception)
In Asady the Court does not perform the own culpable conduct test freshly elaborated by the Grand Chamber. It only notes that “although the applicants had crossed the Slovak border in an unauthorised manner, they were intercepted in the territory of Slovakia and the State provided them access to means of legal entry through the appropriate border procedure” (§62). Seemingly, this may represent a reference to some of the requirements of the N.D. & N.T. exception, but nothing else is said. On the contrary, it is the three dissenting judges Lemmens (Belgium), Keller (Switzerland) and Schembri Orland (Malta) who take a position on this issue.
They argue that, when dealing with an expulsion, there should be a two-tier test to assess whether it has been collective: first, a procedural test (has there been a reasonable, objective examination of each individual case?); second, the own culpable conduct test (if there has been no individualised examination, is this to be attributed to the applicants’ own conduct?). With that being said, the three judges apply the double test to Asady.
First, it cannot be credibly affirmed that the applicants had been examined in an effective and individualised manner. Interview times overlap, 10 minutes each, one interpreter only: this is not a “genuine and effective opportunity” to submit arguments against the expulsion. Once established the collective nature of the expulsion, the second test kicks in. Primarily, there is no doubt that there was an irregular crossing of a land border (1st requirement). But may Slovakia be excused for not having properly and individually examined the Afghans before expelling them, due to their own culpable conduct (2nd requirement)?
The answer is no, as the dissenting judges observe that, while in N.D. & N.T. there were around 600 migrants involved in the ‘storming’ against the Spanish borders with the use of force, in Asady only 32 people took part in the border crossing, without using any force; moreover, in the Slovak case no disruption nor endangerment of public safety were created. Playing the devil’s (or the Slovakia’s) advocate, one might argue that in Asady there was external support and planning (the attempt to cross the border at night, hidden in a truck driven by someone). Still, even with this ‘aggravating circumstance’, the N.D. & N.T. exception would not apply, as it lacks the further required condition.
The dissenting judges, indeed, point out that Slovakia had not provided sufficient access to means of legal entry (3rd requirement). In particular, contrary to N.D. & N.T, there was no option for the Afghans to apply for international protection at diplomatic missions or consulates abroad. Besides, the three judges doubted that the applicants could really have had legal means for admission at the Slovak/Ukrainian border, where obstacles and difficulties in accessing to individual examination procedures had been widely reported, including by Human Rights Watch, UNHCR and other UN bodies.
I would add (4th requirement) that, in Asady, the Court stresses that the expulsion to Ukraine would not have resulted in any risk for the applicants (‘[the applicants] had not alleged any interference with their private and family life in Ukraine or any risk of torture, inhuman or degrading treatment or punishment if they were returned there… furthermore… the applicants were not at risk of any forced return to their country of origin’, §10). To further highlight that Ukraine represented a “safe destination” for the Afghans, the Court also specifies that it has ratified the ECHR. However, even assuming the absence of risks for the applicants in that country, the third requirement (availability of legal entry procedures) would still be lacking, leading to the non-applicability of the N.D. & N.T. exception.
The judgment in Asady is highly unconvincing, both from a factual and legal perspective. It raises questions with regard to the double test (procedural and own culpable conduct) to be performed in a case of a potential collective expulsion. The first one is: do the two tests apply cumulatively or alternatively? While the Court remains silent on that point, as it chooses not to deal with the N.D. & N.T. exception, the joint dissenting opinion of three judges (including the President of the Chamber: Lemmens) on a seven judge bench indicates that the two tests do apply together. In their view, the first check is whether there has been an individualised examination and, if not, to then check whether the absence of such examination lies with the applicants’ conduct.
Further doubts surround the first test and the ‘genuine and effective opportunity’ to submit arguments against the expulsion. Which procedural guarantees does it imply? Is it possible to affirm that the individual interview, which is not necessary in all circumstances (Khlaifia, 2016), has nevertheless become sufficient to exclude a violation of Article 4 of Protocol 4 (Asady, 2020)? How restrictively do the conditions of the interview (duration, type of questions/answers, timing) have to be scrutinized?
As for the second test of the own culpable conduct, which legal means of entry are to be assessed? Those at the borders, those available abroad at consulates and embassies, or both? What is a ‘disruptive situation’? And, more generally, how broad is the scope of the exception? An answer is given in the dissenting opinion in Asady: it must be interpreted and applied restrictively, in accordance with the very peculiar conditions elaborated in N.D. & N.T. This is not, the three dissenting judges clarify, an act of ‘defiance of the Grand Chamber’, but the correct interpretation of the new exception, which is – and must remain – narrow: ‘It is vital that the limited scope of the Grand Chamber’s judgment in N.D. and N.T. v. Spain be respected. An overly broad interpretation of the judgment would damage the “broad consensus within the international community” concerning compliance with “the Convention guarantees, and in particular … the obligation of non-refoulement’ (Asady, joint dissenting opinion, §25).
The forthcoming decisions on collective expulsions will tell us if the Court will welcome this suggestion.