The European Court of Human Rights ruled the immediate return to Morocco of sub-Saharan migrants attempting to enter Spanish territory in Melilla amounted to a collective expulsion of foreign nationals, in breach of the European Convention of Human Rights.
The applicants N.D. and N.T., are respectively, Malian and Ivorian nationals Mali and Cóte d’Ivoire who were born in 1985 and 1986. N.D. and N.T. spent time in Gurugu Mountain a makeshift campsite, near the border crossing into Melilla, a Spanish enclave situated on the North-African coast. The applicants were two of a group of approximately 70 others who once they crossed the border were immediately apprehended by the Spanish Guardia Civil, handcuffed, escorted back over the border and handed over to the Moroccan authorities. These removal measures were taken in the absence of any administrative or judicial decision. At no point were N.D. and N.T. subject to any identification procedure, they were not asked their names, where they had come from or why they were crossing the border. They were given no due process and did not have an opportunity to challenge their expulsion.
The ECtHR observed it was undisputed that N.D. and N.T. were under the exclusive and continuous control of the Spanish authorities and had been expelled and sent back to Morocco against their will. Noting that these removal measures had been taken in the absence of any procedure or prior administrative or judicial decision the Court found Spain to be in violation of Article 4 Protocol 4 (prohibition of collective expulsions) and Article 13 (right to an effective remedy) ECHR. The Spanish Government argued N.D. and N.T. could not claim to be victims as both had entered Spanish territory unlawfully and deportation orders had been issued against them. It was also argued that neither applicant sought international protection. However, the ECtHR found N.D. and N.T. could claim to be victims and had provided a coherent account of their movement. Furthermore, the ECtHR rejected the Government’s argument that N.D. and N.T. had failed to exhaust domestic remedies by challenging the deportation orders before the domestic administrative courts. However, the ECtHR found that as the deportation orders did not issue until after the events complained of the Government’s objection on this ground had to be dismissed. The ECtHR also placed weight on the fact that neither applicant had access to interpreters or to legal assistance for the purpose of informing them of the relevant provisions of asylum law or the procedures available to them to challenge their expulsion. The ECtHR noted the existence of a clear link between the collective expulsion to which the applicants were subjected at the Melilla border and the fact they were effectively prevented from having access to any domestic remedy meeting the requirement of Article 13.
The judgement confirms that the automatic expulsions at the Spanish-Moroccan border are unlawful, reiterates that the ECHR applies at borders and that the conventions safeguards extend to protect migrants. The judgment therefore sets an important precedent to assert that persons moving across borders are imbued certain unalienable rights.
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