The term “Hot Returns” refers to the “push-back” operations against migrants authorized by the Spanish government in Ceuta and Melilla. After many years denouncing the situation faced by migrants attempting to irregularly cross into Spain through Ceuta and Melilla, attention is now focused on the N.D. and N.T. v. Spain case currently before the European Court of Human Rights (The Court). This is the first time an international court will have the opportunity to rule on the legality of the Spanish Government’s actions along the Spanish-Moroccan border.
The applicants in the case are a Malian and Ivorian national who state that on 13 August 2014, after crossing the three fences that separate Melilla from Morocco, they were immediately arrested and driven to Moroccan territory. At least 75 sub-Saharan migrants were also detained and transferred to Morocco in the same operation. They claim that their summary return to Morocco by the Spanish authorities in Melilla did not comply with internationally recognized safeguards and prevented them from requesting international protection. They further allege that their return to Morocco put them at risk of ill-treatment at the hands of the Moroccan police, constituting a breach of both Article 3 of the European Convention on Human Rights (ECHR) (prohibition of torture) and Article 13 (right to an effective remedy). In addition, they state that they have been victims of collective expulsion in violation of Article 4 of Protocol No.4 as well as Article 13 of the Convention in combination with Article 4 of Protocol No.4. The applicants refer to the existence of a systematic return policy carried out outside any formal procedure, which they claim deprives immigrants intercepted at the border of access to legal assistance and the right to have their individual circumstances examined on a case-by-case basis.
The Court found the claims in relation to Article 3 manifestly unfounded, but stressed that the rejection of the allegations did not prejudge the overall situation of ill-treatment alleged by the applicants. The Court admitted the complaints regarding Article 4 of Protocol No.4 and Article 13 of the Convention together with Article 4 of Protocol No.4 and communicated the allegations to the Spanish Government for their response before deciding on the merits. This post will analyze the legal questions raised in the case.
According to Article 1 of the ECHR, all persons within the jurisdiction of a contracting party benefit from the rights and freedoms enumerated therein. One of the arguments used over the years by the Spanish Government to justify its practice of summary expulsions has been that aliens intercepted while climbing the fences to enter Spain in an irregular manner were not considered to be on Spanish territory. Accordingly, Spanish actions at the border would not constitute an expulsion, but rather a refusal of entry of foreign citizens. This interpretation of the law was confirmed by the text of the new Public Security Act, adopted after the events alleged in the case, which allows for “rejection at the border”.
In its intervention in N.D and N.T. v. Spain, the Office of the High Commissioner for Human Rights (OHCHR) disagreed with this interpretation, arguing that international borders are not zones of exclusion or exception from States’ human rights obligations. It emphasized that “states are bound by the prohibition of collective expulsion throughout their territory and in all places where they exercise border governance measures extraterritorially, including in so-called ‘no-man’s land’ between border posts and in immigration and transit zones.” In the same vein, in its landmark case Hirsi Jamaa and Others v. Italy, the Court interpreted the extraterritorial application of human rights obligations and found that the applicants had come within the jurisdiction of Italy for the purposes of Article 1 of the Convention due to the fact that the Italian authorities were exercising de jure control over the individuals concerned. The Court observed that until the applicants were handed over to the Libyan authorities, they were under the “continuous and exclusive de jure and de facto control” of the Italian authorities, with the alleged violations falling within Italy’s jurisdiction. When looking at the situation described by the applicants in N.D. and N.T. v. Spain and supported by reports from NGOs and international organizations, it clearly appears that the applicants were intercepted by the Spanish Guardia Civil while attempting to climb the fence and were under the exclusive and de jure control of Spanish law enforcement authorities until handed over to the Moroccan police. Therefore, even if Spain were to argue that the applicants were intercepted at the border and had not entered Spanish territory, following Hirsi Jamaa, they would still be under Spain´s jurisdiction, thus triggering its human rights obligations under Article 1 of the Convention.
Prohibition of collective expulsion
Next will be considered the claim of violation of the prohibition against collective expulsion (Article 4 of Protocol No.4).
The Court has defined collective expulsion as “any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group”. In Čonka v. Belgium, the Court found that there had been a violation of Article 4 of Protocol No 4 and stated that “the procedure afforded [in]sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into account”. Similar to the Spanish policy of summary expulsions in Ceuta and Melilla, in Čonka v. Belgium the applicants alleged that the orders for their expulsion reflected the authorities’ determination to collectively deal with the situation of a group of individuals (which involved Roma from Slovakia).
The applicants in N.D and N.T. v. Spain allege that they were handed over to the Moroccan authorities without being subjected to any identification procedure. Under very similar circumstances, the Court in Hirsi Jamaa and Others v. Italy found that the fact that the transfer of the applicants to Libya was carried out without any form of examination of each applicant’s individual situation, without being subjected to any identification procedure and with no access to legal counsel or an interpreter was sufficient for the Court to deny the existence of sufficient guarantees that ensure the individual examination of their circumstances, thus constituting a violation of Article 4 of Protocol No. 4. Similarly, in Sharifi and Others v. Italy and Greece, the Court expressed concerns regarding the automatic return of aliens who had been handed over to ferry captains with a view to being removed to Greece without any procedural and substantive rights. Both the Court and OHCHR have gone even further by maintaining that the requirement of individual examination goes beyond identification and determination of country of origin. The process must include an identification of the risk associated with return.
Right to an effective remedy
To determine whether Spain has violated Article 13 of the Convention, it is necessary to analyze the Court´s interpretation of the scope of this provision in the context of return operations. According to the Court, the notion of an effective remedy under Article 13 requires that the remedy prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible. Thus, a mere statement of intent or practical arrangement is not enough to provide for the guarantees foreseen in Article 13. Following Čonka v. Belgium, Article 13 requires the remedy against expulsion to be “effective” both in law and practice. As already mentioned, in N.D. and N.T. v. Spain, the applicants were neither subjected to an identification procedure nor did they have an opportunity to file an appeal against their expulsions. As it follows from the Court jurisprudence, Article 13 of the Convention, combined with Article 4 of Protocol No. 4, requires that the person concerned have the right to a “suspensive” remedy for a complaint that expulsion would amount to collective expulsion. The OHCHR concurs with this view, adding that for the remedy to be effective, an individual must be able to exhaust all available remedies and have access to reparation measures. In addition, the Court has stressed the importance of guaranteeing persons affected by a removal measure the right to obtain sufficient information to allow them to gain access to organizations offering legal and interpretation services. In Hirsi Jamaa, the Court found that Italy had violated Article 13 of the Convention in combination with Article 4 of Protocol No.4 because the applicants had been denied any remedy which would have enabled them to lodge their complaints with a competent authority and to obtain a thorough and rigorous assessment of their requests before the removal measure was enforced.
Concluding remarks and perspectives
The Court has repeatedly stated that, while it does not call into question the right of States to establish their own immigration policies, problems with managing migratory flows cannot justify the recourse to practices that are not compatible with the State’s obligations under the Convention. Given the Court’s prior decisions—discussed above—it is likely that it will rule that Spain has violated the prohibition of collective expulsion as established in Article 4 of Protocol No.4. as well as in Article 13 in conjunction with Article 4 of protocol No. 4.
It is noteworthy, however, that the European Commission, which had repeatedly condemned Spanish practices of summary expulsions in Ceuta and Melilla, may be moving away from its critical position. In January 2016, in a parliamentary response, Dimitris Avramopoulos, the European Commissioner for Migration and Home Affairs, stated that the border actions carried out by the Spanish Government in Ceuta and Melilla are in line with the EU Return Directive and, in particular, with Article 4.4 (b) which refers to the principle of non-refoulement. In this respect, the EU Commissioner maintains that the creation of asylum offices at the border, where individuals in need of international protection can claim asylum, comply with Spain´s obligations to respect the principle of non-refoulement. The recently adopted Public Security Act foresees the establishment of border check-points where asylum seekers can formalize their requests for international protection. However, following the visit to Ceuta and Melilla, the Commissioner noted that in practice, only asylum seekers from Syria have access to asylum offices and that he was not aware of any intercepted migrant being transferred to the asylum offices in order to apply for asylum. Other migrants, particularly those of Sub-Saharan origin, are being denied access to these offices by Moroccan police officers. Even if the offices were effectively functioning, Spain would still be responsible for complying with its human rights obligations to individuals in their jurisdiction, and migrants climbing the border fence may also have valid asylum claims.
Amendment of the Spanish Legal framework after the filing of the case
In March 2015, the Spanish government amended the Organic Law 4/2000 on the Rights and Freedoms of Aliens in Spain and their Social Integration (Aliens Act) and introduced the Organic Law 4/2015 on the protection of Public Security (Public Security Act). The law establishes a special immigration regime applicable to Ceuta and Melilla and “legalizes” summary expulsions. The newly approved text states that those attempting to cross the border of Ceuta and Melilla without authorization “could be rejected in order to prevent illegal immigration into Spain”. This provision does not foresee any of the procedural safeguards laid down in Articles 20, 21 and 22 of the Spanish Aliens Act, which provide for the right to an effective remedy, the right to appeal against administrative acts and the right to a lawyer and an interpreter. In this context, UNHCR has stressed that, while understanding the complexity of border management in Ceuta and Melilla, the government should ensure that legal initiatives comply with its international obligations, particularly the 1951 Refugee Convention.
Before the amendment of the Aliens Act, the Spanish actions were carried out outside the legality of any formal procedure. With the adoption of the Public Security Act these actions were provided with a semblance of legal basis and were specifically prescribed by law. The fact that some provisions of the Public Security Act allow for “rejection at border” does not necessarily change the analysis of this practice under the European Convention on Human Rights.
Under the current Spanish legal framework, future cases brought before the European Court of Human Rights may put pressure on the Spanish Government to reconsider the amendment and modify the law. It is noteworthy that the Council of Europe Commissioner for Human Rights has already stated that the new legislation falls short of providing clear guarantees against refoulement and collective expulsions and fails to establish adequate safeguards for the right of every person to seek and obtain asylum, irrespective of their mode of entry into Spanish territory.
Rocío Naranjo Sandalio is a qualified lawyer in Spain. She also holds a B.S. in Business Administration from the University of Granada and is currently an LL.M. candidate at Columbia University School of Law as a “La Caixa Foundation” Fellow. Rocío is focusing her career on Human Rights and Refugee Law.
 Id. para.11.
 Id. para.12.
 Id. para.13.
 Id. para.12.
 Id. para.15.
 Id. para. 6-17.
 Article 1 of the European Convention on Human Rights establishes that “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”
 United Nations High Commissioner for Human Rights (OHCHR), Intervention before the European Court of Human Rights in the case N.D. and N.T. v Spain Application Nos. 8675/15 and 8697/15, §15.
 Hirsi Jamaa and Others v. Italy, no. 27765/09, 23 February 2012.
 Id. para. 77.
 Id. para. 81-82.
 Andric v. Sweden, no. 45917/99, para.1, 23 February 1999.
 Čonka v. Belgium, no. 51564/99, para. 63, 5 February 2002.
 Id para. 56.
 Third party intervention by the Council of Europe Commissioner for Human Rights, No. 8675/15 and No. 8697/15 N.D. v. Spain and N.T. v. Spain. para. 31.
 Hirsi Jamaa and Others v. Italy, no. 27765/09, para. 185, 23 February 2012.
 Sharifi and Others v. Italy and Greece, no. 16643/09, para. 219, 21 October 2014.
 Khlaifia and others v. Italy, no. 16483/12, para. 156, 1 September 2015.
 United Nations High Commissioner for Human Rights (OHCHR), Intervention before the European Court of Human Rights in the case N.D. and N.T. v Spain Application Nos. 8675/15 and 8697/15, para. 20.
 Jabari v. Turkey, no. 40035/98, para. 50, 11 July 2000.
 Čonka v. Belgium, no. 51564/99, para. 83, 5 February 2002.
 Id para. 75.
N.D. v. Spain and N.T. v. Spain (dec.), no 8675/15 and 8697/15. para. 16, 30 July 2015.
 Čonka v. Belgium, no. 51564/99, para. 81-83, 5 February 2002.
 United Nations High Commissioner for Human Rights (OHCHR), Intervention before the European Court of Human Rights in the case N.D. and N.T. v Spain Application Nos. 8675/15 and 8697/15, para. 32-34.
 Id para. 38-40.
 Hirsi Jamaa and Others v. Italy, no. 27765/09, para. 204, 23 February 2012.
 I.M. v. France, no. 9152/09, para. 145, 2 February 2012.
 Hirsi Jamaa and Others v. Italy, no. 27765/09, para. 205, 23 February 2012.
 Id para.179.
 Council Directive 2008/115, of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, 2008 O.J. (L348).
 Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social [Aliens Act] modificada por la Ley Orgánica 4/2000, de 11 de enero, Disposición adicional Décima “Régimen especial de Ceuta y Melilla” para. 3.
 According to the report of the Council of Europe Commissioner for Human Rights in Applications No. 8675/15 and No. 8697/15 N.D. v. Spain and N.T. v. Spain, at the time of the report, 4700 asylum claims were filed in Melilla almost exclusively by Syrians.
 Council of Europe Commissioner for Human Rights, Intervention before the European Court of Human Rights in the case N.D. and N.T. v Spain Application Nos. 8675/15 and 8697/15, para. 30-31.
 According to UNHCR, since 2013 a growing number of migrants crossing to Spain trough Melilla are likely to be in need of international protection as they come from war-torn countries. See http://www.unhcr.org/news/briefing/2014/10/544f71e96/unhcr-concerned-attempt-legalize-automatic-returns-spanish-enclaves.html
 Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social [Aliens Act].
 Ley Orgánica 4/2015, de 30 de Marzo, de Protección de la Seguridad Ciudadana [Public Security Act].
 Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social [Aliens Act] modificada por la Ley Orgánica 4/2000, de 11 de enero, Disposición Adicional Décima “Régimen Especial de Ceuta y Melilla”.
 Id. art.20-22.
 Third party intervention by the Council of Europe Commissioner for Human Rights, No. 8675/15 and No. 8697/15 N.D. v. Spain and N.T. v. Spain. Para 24.
Header image attributed to FronteraSurMelillia and used under the Creative Commons license.