Blog post by Nensi Sinanaj, a current student undertaking a Master of Laws at the University of Milan, and an intern for the legal firm Oralex with a focus on Human Rights Protection.
In the matter of International migration, there is no convention that provides a legal right to enter another state. However, states are restricted when exercising their right “to control the entry, residence and expulsion of aliens”. Firstly, the principle of non-refoulement prohibits states from returning individuals to a country where there is a real risk of being subjected to persecution, torture, inhuman or degrading treatment or any other human rights violation. While broadly considered customary international law, the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) do not mention the non-refoulement principle explicitly. The European Court of Human Rights has nevertheless made it clear that the prohibitions on torture, inhuman, or degrading treatment or punishment included in Article 7 ICCPR and Article 3 ECHR also apply to deportations, expulsions, or extraditions. Secondly, states are restricted when the right to family life in Article 8 ECHR is applicable. Therefore, while there is no fundamental right to enter a state, there remains an obligation on the state not to refuse entry in case the principle of non-refoulement is at stake or the right to family life in the light of Article 8 ECHR.
The “own culpable conduct” is the precedent set by the Grand Chamber judgement in N.D and N.T v. Spain. Individuals can be removed from the territory of a state in the case that they did not make use of any legal existing means of entry and they took advantage as a group of large number by using force. This test was used by the European Court of Human Rights in the decision of Asady and Others v. Slovakia. These two cases deal with push backs in land borders; however, their context is different. The aim of this blogpost is to distinguish between N.D and N.T v. Spain and Asady and Others v. Slovakia and highlight that a broad interpretation of the Spanish case could lead to compromising the principle of non-refoulement.
Case of Asady and Others v. Slovakia (Third Section of the European Court of Human Rights, application no.24917/15, 24 March 2020)
This case concerns the expulsion of nineteen Afghan asylum seekers from Slovakia to Ukraine in November 2014. The Third Section of the European Court of Human Rights (ECHR) ruled on Asady and Others v. Slovakia (Application no. 24917/15 on March 2020, with a slight majority of 4 votes to 3. This judgement followed the ruling of the Grand Chamber in N.D and N.T v. Spain (Applications nos. 8675/15 and 8697/15) decided on 13 February. The applicants complained that the collective expulsion constituted a violation of Article 4 Protocol 4 to ECHR. “Collective expulsion” in the light of Article 4 of Protocol 4 is to be understood as “any measure compelling aliens, as a group, to leave the 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”. The purpose of Article 4 of Protocol No. 4 is thus to prevent States from removing a number of aliens without examining their personal circumstances. Additionally, the applicants argued that they had no access to an effective remedy for challenging their expulsion in violation of Article 13 ECHR in conjunction with Article 4 Protocol 4 ECHR. In respect of the principle of non-refoulement, the applicants must be given a real possibility to claim protection with effective access to a procedure.
Case Facts in Asady and Others v. Slovakia
On 17 November 2014, the applicants, part of a bigger group of 32 people, were found hiding in the back of a truck which was trying to cross the Slovak border to Ukraine at around 1.30 am. For the purpose of an identity check, they were refused entry to Ukraine, taken back to the police station of Petrovce in Slovakia and at 9 am they were provided with an interpreter. According to the official transcripts, the interviews of each applicant lasted 10 minutes. They took place in the presence of two police officers and an interpreter of Persian language. During these proceedings, the applicants were asked standard yes/no questions and within 24 hours of their stay the authorities had taken the expulsion decision for them as a group. Based on the transcripts delivered by the national authorities, none of the applicants affirmed that they were under a risk of persecution in their home country. Instead, the documents show that they had left Afghanistan on economic grounds. As a consequence, they were denied access to the asylum procedures. It is doubtful, whether the applicants were given a genuine and effective possibility to introduce their arguments against the expulsion considering the short time of the interviews and the lack of evidence to prove that their cases were examined individually.
Decision of the Court
In the view of the European Court of Human Rights, there lies no violation of Article 4 Protocol No.4 to the European Convention of Human Rights as the removal of the Afghan nationals did not amount to collective expulsion. This decision followed the reasoning set by the Grand Chamber judgement in N.D and N.T v. Spain. According to the Court, the removal of the applicants to Ukraine was not conducted without any examination of their individual circumstances. Furthermore, the Third Section of the ECHR Court emphasised that the applicants underwent interviews and they did not make any reference to the risk of an ill-treatment in case of their readmission to Ukraine . Most importantly, the Court noted that the applicants had the possibility to express their arguments in the interviews that were carried out with the authorities. It was observed that none of the applicants had taken advantage of the legal means of entry that the state had provided.
The Chamber in Asady and Others v. Slovakia affirmed that there is no guarantee of the right to an individual interview based on the European Convention on Human Rights. Nevertheless, there is a right to present one’s arguments against expulsion in an effective manner. It is questionable, whether the applicants were given an effective possibility for submitting their motives against their removal and if their personal circumstances were taken into account. According to the official transcripts, some of the interviews took place at the same time. However, the Court did not recognize these circumstances as sufficient to come to the conclusion that the applicants did not have individual interviews. In addition, the Strasbourg-based Chamber emphasised that the applicants during their expulsion appeals did not bring any personal reasons to support their asylum request. There was no evidence to suggest that their asylum requests had been ignored or that there was an incorrect translation of their statements.
N.D and N.T v. Spain, a dangerous precedent?
In the joint dissenting opinion of Judges Lemmens, Keller and Schembri Orland, they recognize that the limited scope of the Grand Chamber Judgement in N.D and N.T v. Spain must be respected. The Grand Chamber in N.D and N.T v. Spain found no violation of Article 4 of Protocol No.4 due to the fact that the applicants had placed themselves in jeopardy by participating in the storming of the Melilla border fences, taking advantage of the group’s large numbers and using force. They had not made use of the existing legal procedures for gaining lawful entry to Spanish territory. Consequently, the Court considered that the lack of individual removal decisions could be attributed to the fact that the applicants had not made use of the official entry procedures existing for that purpose, and that it had thus been a consequence of their own conduct.
The judges in their dissenting opinion emphasise that an overly broad interpretation of the Spanish case would damage the “broad consensus within the international community” concerning compliance with “the Convention guarantees, and in particular … the obligation of non-refoulement” (N.D and N.T v. Spain § 232). It is debatable if Asady and Others v. Slovakia can be identified by N.D and N.T v. Spain. In the dissenting Opinion, it is accepted that the applicants were subjected to a collective expulsion. To the question, if there had been an objective examination of each individual case, the judges reflect on the overlapping interviews and conclude that no genuine and effective opportunity is given to the applicants to submit their arguments. Nevertheless, the judges test in a second step if the state can be excused for not having individually examined the situations of the aliens due to their “own culpable conduct”.
In the Spanish case, the Grand Chamber referred to persons who “deliberately take advantage of their large numbers and use force” (N.D and N.T v. Spain §201). However, contrary to the Grand Chamber judgement in which more than 600 individuals were involved, the present case of Asady and Others v. Slovakia concerned only thirty-two migrants and there is no indication that force was used by them. Secondly, the judges refer to the creation of a “clearly disruptive situation which is difficult to control and endangers public safety (N.D and N.T v. Spain §201). There is nothing to suggest that the applicants caused no such disruption or endangerment of public safety. Lastly, the dissenting Opinion reflects on the question whether the state provided genuine and effective access to means of legal entry, in particular border procedures. For judges Lemmens, Keller and Schembri Orland, it is irrelevant the fact that the applicants entered Slovakia in an unauthorised manner because the respondent state has not provided sufficient access to means of legal entry. The dissenting opinion makes a reference to the evidence provided by the Human Rights Watch and the United Nations in § 29 Asady and Others v. Slovakia.
Specifically with regard to Slovakia, Human Rights Watch stated that
The most common complaint heard from migrants who had been returned from Slovakia was that their asylum claims were ignored and that they were treated in summary fashion and quickly sent back within hours of apprehension in Slovakia, with little opportunity to make any claim to remain.
In addition, the judges from the dissenting Opinion in Asady and Others v. Slovakia refer to the fact that the applicants in N.D and N.T v. Spain had more opportunity to seek admission to Spain than the applicants in the present case. The applicants from N.D and N.T v. Spain had the possibility to gain access to international protection at the diplomatic missions and consulates abroad (§212). The judges base their argument on the evidence brought by the NGO Human Rights Watch mentioned above.
As seen in Asady and Others v. Slovakia, the precedent set by N.D and N.T v. Spain raises important questions to the weight of the principle of non-refoulement. With the emergence of human rights in migration law, the exception of the “own culpable conduct” in push backs at land borders represents a challenge for future decisions that are pending in front of the European Court of Human Rights. The exception of N.D and N.T v. Spain must be correctly interpreted in order not to create confusion for the obligation of non-refoulement guaranteed by the Convention. The burden of this decision will be shown in the future in cases awaiting decision by the Court such as H.K v. Hungary (application no. 18531/17 or D.A and Others v. Poland (application no.51246/17). The principle of non-refoulement represents a way to govern migration. It supports the goal of reducing human suffering and saving lives. This principle takes a particular significance for the European Court of Human Rights because it involves absolute convention rights and protects migrants by enforcing their human rights. For all these reasons, the precedent set by N.D and N.T v. Spain should not be seen as a get-away for the ECtHR not to recognize human rights violations.
Jane McAdam, The Enduring Relevance of the 1951 Refugee Convention, International Journal of Refugee Law, 2017, Vol.29, No 1, 1-9
Francesco Maiani, the reform of the Dublin system and the dystopia of “sharing people”, Maastricht Journal of European and Comparative Law, 2017, Vol.24 (5), 622-645
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