Spain’s Summary Returns to Morocco Violate the European Convention on Human Rights

On 3 October 2017, the European Court of Human Rights ruled unanimously against Spain in N.D. and N.T. v. Spain, stating that the country had violated the prohibition of collective expulsion (Article 4 of Protocol No.4) and the right to an effective remedy (Article 13) of the European Convention on Human Rights (ECHR).[1] The judgment was issued by the Chamber (first instance) and therefore, is open to appeal to the Grand Chamber, during the three-month period following its delivery.[2]

As discussed in a previous post, the applicants in that case claimed to have been arrested by Spanish law enforcement authorities and returned to Moroccan territory as part of a group of more than 70 sub-Saharan migrants, immediately after descending the third border fence that separates the autonomous city of Melilla from Morocco.[3] These individuals were not subjected to any administrative or judicial procedure and were not given the opportunity to explain their personal circumstances.

The Spanish Government has argued over the years that the fences erected between Spain and Morocco in the autonomous cities of Ceuta and Melilla are not considered to be located in Spain’s territory and therefore migrants intercepted while scaling the fences do not fall under Spanish jurisdiction. However, as predicted, the Court´s decision confirmed that Spain had achieved jurisdiction over the migrants and therefore the human rights obligations under Article 1 of the ECHR applied to Spain in the case. Following its line of reasoning in Hirsi Jamaa and others v. Italy[4], the Court held that the fact that the applicants were—from the moment they climbed down from the fences—under the continuous and exclusive custody of the Spanish authorities determines Spain´s responsibility under ECHR jurisdiction and triggers the application of Article 4 of Protocol No.4 without the necessity to determine whether they had entered Spanish territory or had—as asserted by the government–been refused entry at the border.[5]

With respect to the prohibition of collective expulsions, the Court concluded that the removal of the applicants breached Article 4 of Protocol No.4, which requires that the personal circumstances of each individual concerned be individually taken into account.[6] The Court based its reasoning on the fact that the general policy applied by the national government to prevent migrants’ attempts to unlawfully cross the border does not take into consideration individual circumstances, highlighting that the applicants were neither identified nor given information on the possibility of applying for asylum. Moreover, according to the Court, the decision was taken without any formal procedure involving an administrative or judicial decision on expulsion.[7]

Finally, the Court ruled that there had been a violation of the right to an effective remedy as recognized under Article 13 of the ECHR.[8] The Court reminded the government that the available remedies must be effective both “in practice and law,” [9] as previously stated in Čonka v. Belgium[10]. According to the Court, the immediate nature of the de facto expulsion constitutes sufficient grounds to trigger a violation of the right to an effective remedy that would have enabled the applicants to submit a complaint alleging a violation of Article 4 of Protocol No. 4 and therefore to have their cases reviewed prior to expulsion.[11]

This is the first time that the Court has ruled on Spain’s immigration practices at the land borders in Ceuta and Melilla. In its decision, the Court refuted the arguments put forward over the years by the Spanish Government to justify summary expulsions. This decision may even have consequences regarding the Public Security Act of 2015[12]–enacted after the events in the case—which authorizes by statute Spain´s existing practices in Ceuta and Melilla. The Public Security Act “legalizes” the summary expulsions by establishing a special immigration regime applicable to Ceuta and Melilla that allows for “rejection of entry at the border” and does not foresee any procedural safeguards such as the right to an effective remedy, the right to appeal against administrative acts and the right to a lawyer and an interpreter.[13] Despite the fact that the Public Security Act was not at issue in the case, the Court´s decision would appear to put pressure on the Spanish Government to reconsider and modify the law in order to comply with its obligations under the ECHR and to avoid further litigation before the Court.[14]

The Court’s decision comes at a crucial time to remind State Parties of their commitments under the ECHR, underscoring the importance of adhering to human rights obligations even at times of intense migratory pressure.

The Court’s decision has been welcomed by several national[15] and international[16] NGOs which have expressed their hope that the Court’s ruling will lead to a change in Spain’s immigration policies and to an amendment to the Aliens Act. As stated by the European Center for Constitutional and Human Rights, this decision has set an important precedent in ensuring the human rights of migrants and refugees in Spain.[17] The Spanish Commission for Refugees (CEAR) has already begun an advocacy campaign aimed at collecting signatures to put pressure on the government to halt summary returns in Ceuta and Melilla and to repeal the Public Security Act.[18]

The president of the autonomous city of Melilla, who has traditionally supported the summary expulsions, has expressed his concerns regarding the judgment. In his opinion, if the Court’s decision goes into effect and Spain is not allowed to continue what the government has termed its policy of “rejections at the border”, “a higher fence” will need to be built to prevent unlawful entry.[19] Far from welcoming the Court’s ruling, the  Melilla authorities have stated that the decision will produce more migratory pull factors and increase the activities and profits of migrant smugglers operating in Northern Morocco.[20] Thus, the President of Melilla has called upon the national Government to appeal the Court’s decision in order to prevent further arrivals. The Spanish Government has already announced that they are currently considering appealing the case to the Grand Chamber.[21]

It is my hope that this decision will put an end to Spain’s summary expulsions in Ceuta and Melilla and lead to an amendment of the Aliens Act[22] to ensure compliance with binding guarantees against refoulement and collective expulsions. As previously stated by UNHCR on several occasions, it is crucial to establish a mechanism that allows for rapid identification of individuals in need of international protection, as well as unaccompanied minors and individuals with special needs such as victims of human trafficking and gender violence.

The Court’s decision should be regarded as a starting point to encourage the Spanish Government to rethink its immigration policies and in pursuit of both secure and legal migrations channels as well as procedures to ensure access to international protection. Furthermore, in the face of the increasing tendency to externalize immigration controls, it is now more important than ever to remember that externalization is not synonymous with exemption from liability and that no immigration policy should justify human rights violations. With its N.D. and N.T. v. Spain judgment, the Court has affirmed once again that human rights obligations under ECHR jurisdiction are not strictly restricted to the national territory and could even trigger responsibility for human rights violations outside the territory of a State Party whenever that State party exercises de jure control in specific contexts.

Rocío Naranjo Sandalio is a qualified lawyer in Spain. She also holds a B.S. in Business Administration from the University of Granada and an LL.M. from Columbia University School of Law where she studied as a “La Caixa Foundation” Fellow. Rocío is focusing her career on Human Rights and Refugee Law.

[1] N.D. and N.T. v. Spain, no 8675/15 and 8697/15, 3 October 2017.
[2] Article 43 and 44 of the European Convention on Human Rights.
[3] N.D. v. Spain and N.T. v. Spain, no 8675/15 and 8697/15, 30 July 2015.
[4] Hirsi Jamaa and Others v. Italy, no. 27765/09, §§ 173-174, 23 February 2012.
[5] N.D. and N.T. v. Spain, no 8675/15 and 8697/15, §105, 3 October 2017. Although not necessary to a decision in the case, the Court took the opportunity to remind Spain that the land borders between Morocco and the autonomous cities of Ceuta and Melilla have been established by international treaties between Spain and Morocco and cannot be unilaterally modified at the behest of one of the parties. Id §53.
[6] Id §108.
[7] Id §107.
[8] Id §122.
[9] Id §114.
[10] Čonka v. Belgium, no. 51564/99, §75, 5 February 2002.
[11] N.D. and N.T. v. Spain, no 8675/15 and 8697/15, §121, 3 October 2017.
[12] Ley Orgánica 4/2015, de 30 de Marzo, de Protección de la Seguridad Ciudadana [Public Security Act].
[13] Article 20-22 of the 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”.
[14] See previous post:
[15] See for example: CEAR, “ El Tribunal Europeo de DDHH condena a España por dos ‘devoluciones en caliente’”, 3 October 2017,; Adalucia Acoge, “Andalucía Acoge celebra la condena del Tribunal de Estrasburgo a España por las devoluciones en caliente”,
[16] See for example: ECRE, “Immediate return of migrants from the Spanish enclave of Melilla to Morocco violated the European Convention on Human Rights”, 6 October 2017,; ECCHR, “ECtHR judgment on case of N.D. and N.T. vs Spain”,
[17] ECCHR, “ECtHR judgment on case of N.D. and N.T. vs Spain”,
[19] El Faro de Melilla, “Imbroda dice que habrá que “subir la valla” si no se pueden hacer rechazos en frontera”, 5 October 2017,
[20] Desalambre (, “El presidente de Melilla pide “subir la valla” si no se puede devolver ilegalmente a quienes la saltan”, 5 October 2017,
[21] Europa Press, “El Gobierno estudia recurrir la condena a España por parte del TEDH por dos devoluciones sumarias en 2014”, 4 October, 2017,
[22] 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”.

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