N.D. and N.T. v. Spain: defining Strasbourg’s position on push backs at land borders?

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. Continue reading

Push backs of “badly behaving” migrants at Spanish border are not collective expulsions (but might still be illegal refoulements)

By Ruben Wissing (Ghent University)

On 13 February, the Grand Chamber rendered a long awaited judgment, meandering over more than one hundred pages, in the N.D. and N.T case on the push-back practices against migrants at the Moroccan-Spanish border fence surrounding the city of Melilla – the so-called devoluciones en caliente or ‘hot returns’ by the Spanish border police.  The Court did not qualify them as collective expulsions, thus acquitting Spain of having violated Art. 4 of Protocol No. 4. However, the specific circumstances of the case, as well as the absence of an examination of the principle of non-refoulement, have been ultimately decisive for the outcome of this case, thus restricting the extent to which the Court’s findings can be generalised to similar practices at the EU external borders. Continue reading

Prohibiting Collective Expulsion in Melilla: What Should We Expect from the Upcoming Grand Chamber Decision?

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. Continue reading

Judgement ND and NT v Spain: on the legality of police “push-backs” at the borders and, again, on the prohibition of collective expulsions.

By Prof. Dr. David Moya, Constitutional Law Department of the University of Barcelona, Migration Research and Studies Centre CERM, Public Law Observatory IDP

Last week, the 3rd Section of the European Court of Human Rights published its Judgement ND and NT v. Spain, in a case brought before the Court by two foreigners from Mali and the Ivory Coast (Mr. ND and Mr. NT) who alleged to have been “pushed back” by the Spanish gendarmerie Guardia Civil in charge of the surveillance and protection of the Spanish border between the Spanish Autonomous City of Melilla and the Kingdom of Morocco. The applicants alleged that the push-back violated their right to an effective remedy (Art. 13 ECHR) and the prohibitionof collective expulsions (Art. 4 Protocol 4 ECHR). Continue reading