A brand-new exclusionary clause to the prohibition of collective expulsion of aliens: the applicant's own conduct in N.D. and N.T. v Spain'

In its ruling of 13 February 2020 in N.D. and N.T. v Spain, the Grand Chamber of the European Court of Human Rights (ECtHR or 'the Court') found that pushbacks at the Spanish-Moroccan land border comply with Article 4 Protocol 4 of the European Convention on Human Rights (ECHR, or 'the Convention'), which prohibits the collective expulsion of aliens. Finding that Spain had exercised jurisdiction over the events, the Grand Chamber determined that the removals at stake constituted an 'expulsion' but lacked a 'collective' nature. In reversing the previous ruling of the Chamber, the Court added a novel exclusionary clause to Article 4 Protocol 4 and developed a two-step test to establish whether the responsibility of the respondent State should be excluded in cases where applicants (attempt to) enter a Country in an unauthorised manner. The first step is aimed at assessing whether the destination Country provided genuine and effective access to means of legal entry into its territory and whether the applicants made use of it. Where the State provided such access, but the applicants did not avail themselves of it,the Court moves forward to the second step, which is meant to establish whether the applicants had cogent reasons not to do so. These cogent reasons must be based on 'objective facts for which the respondent State was responsible. The judgment of the Grand Chamber merits attention due to the Court's stance on several issues. First, the ruling on the exercise of jurisdiction by Spain (Article 1 ECHR) differs from the previous ruling of the Chamber. Second, the Grand Chamber provides a new interpretation of the prohibition of collective expulsion of aliens, with particular reference to the assessment of the 'collective' nature of the removal. Third,the potentially harmful implications that the re-shaped scope of Article 4 Protocol 4 could have in other litigation concerning the externalization of border control policies, such as those occurring at the Greek-Turkish land border and interception on the high seas, is worthy of consideration. The impact of the judgment in the context of the current immigration control policies performed by European States concerns also the principle of non-refoulement under Article 3 ECHR. Following a summary of the proceedings before the Chamber and the Grand Chamber (Section 2), this article briefly addresses the finding on the issue of jurisdiction under Article 1 ECHR (Section 3). Section 4 considers the Grand Chamber's assessment of the merits of the complaint under Article 4 Protocol 4, namely the relevance of the applicants' own conduct in the context of pushbacks of aliens entered in an unauthorised manner, and Section 5 considers the new two-step test to be applied in pushback operations. The article considers the implications of the ND judgment on other situations, taking into account the recent ruling in Asady and others v Slovakia (Section 6).4 Brief concluding remarks are set out in Section 7.