Deconstructing Hirsi: The Return of Hot Returns

Introduction

ND and NT were part of a group of migrants who simultaneously and in coordination tried to illegally cross the land border between Morocco and Spain. The Spanish authorities intercepted them in the attempt and automatically handed them over to the Moroccan police, without trying to identify them and without carrying out any administrative procedures.

These facts, first dealt with by a Chamber of the 3rd Section of the European Court of Human Rights, ¹ and then, on 13 February 2020, by the Grand Chamber, ² far from constituting an isolated case, are a reflection of a systematic, consolidated and generalised practice on the borders of several European states, ³ the so-called ‘hot returns’ or ‘pushbacks’ of aliens. These are summary returns to neighbouring countries of people intercepted while trying to cross the border irregularly, without taking into account any assessment of their individual circumstances. ⁴ This explains the interest sparked by the case in question in those states and others, some of which were third parties to the proceedings, together with key players such as the United Nations High Commissioner for Refugees (UNHCR) or the United Nations High Commissioner for Human Rights.

The judgment of the Grand Chamber is also relevant because, far from consolidating prior case law on the protection of deportable immigrants that had gradually been taking shape in various supranational bodies – with Strasbourg at the centre – it marks a veritable paradigm shift in the approach to this issue. It entails a deconstruction of that case law which, although respecting some of its conceptual or hermeneutical elements, introduces new ones that deprive a considerable proportion of migrants – probably the majority – of protection against expulsion.

The impact of this judgment on European and national migration policies is, therefore, potentially significant in terms of restricting migrant rights. This has already been evidenced in Spain, where the Constitutional Court has recently legitimised hot returns following the judgment of the Grand Chamber.

First, the background is discussed, after which both the judgments of the Chamber and the Grand Chamber on the case will be summarised, and the latter will be analysed. Finally, the impact of the judgment will be assessed through the aforementioned ruling from the Spanish Constitutional Court.

The background

The appellants of the case under study, ND and NT, from Mali and the Ivory Coast respectively, were intercepted by the Spanish Civil Guard in August 2014 while trying to enter the Spanish territory of Melilla as part of a large group of sub-Saharan migrants, via the triple fence that separates this city from the Kingdom of Morocco.

After their interception, the Civil Guard handcuffed and handed them over to the Moroccan authorities through the gates in the fences. No attempt was made to identify them, nor were they given the opportunity to explain their personal circumstances, receive the assistance of lawyers, interpreters or medical personnel, or to appeal in any way against their return to Morocco.

Some months later, both appellants finally managed to enter Spain by crossing the same border. After being discovered by the Spanish authorities, both were issued with expulsion orders. ND applied for international protection, but the application was rejected. He was ultimately returned to Mali, where he has been living in very precarious circumstances, with no fixed address. NT, meanwhile, has apparently been staying unlawfully in Spain, with no fixed address either.

At the time of the events, the practice of hot returns was a de facto administrative practice used by the Spanish authorities and only regulated under an internal protocol of the Civil Guard. ⁵ Nevertheless, some months later (in March 2015) the Spanish Immigration Act ⁶ was reformed to legalise such practices within the borders of Ceuta and Melilla. ⁷

Judgment of the Chamber

In the first judgment of the European Court on the case, the Chamber unanimously ruled that the applicants’ pushback at the border, which took place under Spanish jurisdiction, constituted a collective expulsion prohibited under Article 4 of Protocol No. 4 to the European Convention on Human Rights (hereinafter, ‘the Protocol’), ⁸ so it condemned Spain for the violation of that precept alone and, also, as mentioned below, together with Article 13 of the European Convention on Human Rights ⁹ (hereinafter, ‘the Convention’).

The reasoning of the judgment is in the wake of its earlier case law in this regard (particularly, cases Hirsi Jamaa ¹⁰ and Sharifi ¹¹ ). First, in response to the objection of lack of ‘jurisdiction’ based on Article 1 of the Convention ¹² pleaded by the Spanish Government (hereinafter, ‘the Government’), the Court affirmed that, even when, according to international treaties, the Melilla border fences clearly belong to Spain, it was not necessary to enter into a disquisition on the territory. Thus, referring to Hirsi Jamaa, in which the European Court considered that the interception of migrants on the high seas fell within the scope of Article 1, it reiterated that the effective submission to the power of a state implies being under its jurisdiction for the purposes of the Convention, even though this sometimes implies an exception to the essentially territorial logic of the requirement. In the present case, it was obvious that ND and NT were under the effective and exclusive control of the Spanish authorities and, hence, under its jurisdiction.

Second, turning to Government’s objection on the applicability of Article 4 of the Protocol on the basis that, in this case, the applicants had not been subject to an ‘expulsion’, but to a ‘non-admission’, since they had not succeeded in entering Spanish territory, the Chamber stood by the generic interpretation of the term ‘expulsion’ as forced removal from a country. ¹³ Invoking again the precedent of Hirsi Jamaa, it concluded that ‘if even interceptions on the high seas come within the ambit of Article 4 of Protocol No. 4, the same must also apply to the allegedly lawful refusal of entry to the national territory of persons arriving in Spain illegally’. ¹⁴

Third, as to the ‘collective’ character of the expulsion, and responding to the Government’s objection that that condition would not be met because the measure did not affect a group of people with common and specific characteristics or circumstances, the Chamber referred back to Hirsi Jamaa and Sharifi to reaffirm that the ‘collective’ nature of the expulsion is due not to the number of people affected by the measure (a minimum is not required), but by the absence of a reasonable and objective examination of the particular case of each individual alien in the group. ¹⁵

Finally, given that the immediate and de facto nature of the expulsion of the appellants deprived them of any possibility of appealing that measure, the Chamber considered that there had been also a violation of Article 13 of the Convention in relation to Article 4 of the Protocol. ¹⁶

Judgment of the Grand Chamber

The case was referred to the Grand Chamber by the Government under Article 43 of the Convention and accepted by the former as posing an important issue on ‘interpretation of the scope and requirements of Article 4 of Protocol No. 4 with regard to migrants who attempt to enter a Contracting State in an unauthorised manner by taking advantage of their large numbers’. ¹⁷

Unlike the Chamber, the Grand Chamber concluded that there was no violation of either the Convention (Article 13) or the Protocol (Article 4).

Although it considered, like the Chamber, that the events actually occurred under Spanish jurisdiction, that they constituted expulsions in the light of Article 4 of the Protocol (by defending the generic interpretation of that concept ¹⁸ ) and that these expulsions were collective, given the absence of a reasonable examination of the particular case of each individual in the group, the Grand Chamber ultimately exempted the state from responsibility in the light of Article 4 of the Protocol. The reason: it interpreted the lack of individual assessment for returning each of the appellants as due to their own conduct (‘guilty’), in not making use of the legal procedures in place for entering Spain. In this respect, the Court concluded that those procedures actually existed and were effective. ¹⁹ As a response to the information provided by third parties involved in the process on the impossibility or the major difficulty facing sub-Saharan immigrants in having access to the border crossing point in Melilla from Morocco (and therefore in having access to those procedures), the Court held that, even if those obstacles actually exist, it was not proven that they were attributable to the Spanish state. ²⁰

Finally, and regarding Article 13 of the Convention, the Court considered that, in so far as it ‘has found that the lack of an individualised procedure for their removal was the consequence of the applicants’ own conduct in attempting to gain unauthorised entry at Melilla (…), it cannot hold the respondent State responsible for not making a legal remedy available there against that same removal’. ²¹

Comment

The decision of the Grand Chamber, unlike that of the Chamber in this same case, was anything but predictable on the basis of the earlier case law. Its reasoning is an amalgam of old and new interpretive criteria, with a certain amount of conceptual confusion, which, as will be demonstrated, entails a step backwards in the standard of protection of the rights of aliens against expulsion reached so far on this subject.

Interpretation of ‘jurisdiction’, ‘expulsion’, and ‘collective’. The extraterritorial application of the Convention as an absent interpretive criterion

Although both the Chamber and the Grand Chamber rejected the Government’s objections regarding jurisdiction and the existence of ‘expulsions’ for the purposes of Article 4 of the Protocol, they relied on different reasoning to do so. In these points of the resolution, the restrictive effect of the Grand Chamber’s judgment comes not from what it said, but rather from what it omitted. In particular, it avoided touching on certain expansive interpretations it had developed in its previous case law.

Concerning jurisdiction, although neither party questions that the location where the events took place is part of Spanish territory, on this occasion the Government invoked an exception to jurisdiction derived from the particular difficulty in managing illegal immigration in that enclave, particularly in cases of a mass influx of immigrants. The Grand Chamber rejected any possible unilateral exception to the jurisdiction of the states for the purposes of applying the Convention, but supported this conclusion with primarily territorial arguments (aimed at demonstrating that the border enclave in question is Spanish territory for all intents and purposes, following international standards). Unlike the Chamber, it did not use the argument of the ‘effective exercise of power’ by the Spanish border guards on the appellants to reaffirm Spanish jurisdiction. It only referred to this argument as a possible exception, ex Article 56.1 of the Convention, to the application thereof in part of the territory of a state if it did not have real/de facto power in the place in question ²² (which was not the case in the present judgment, said the Court), but not as a reason that could lead to an extraterritorial application of the Convention.

This same disparity may be observed in the rationale of both Chambers in defending the generic interpretation of ‘expulsion’ as forced removal from a country. Instead of using, as the Chamber did, its own case law on the broad interpretation of the term, pursuant to which ‘expulsion’ is considered to be the forced removal from the territory of a state and under its own responsibility, even when the person has not managed to reach it, the Grand Chamber relied on the provisions of various international ²³ and EU texts ²⁴ to conclude that ‘the protection of the Convention […] cannot be dependent on formal considerations such as whether the persons to be protected were admitted to the territory of a Contracting State in conformity with a particular provision of national or European law applicable to the situation in question’. ²⁵

The fact that the Grand Chamber did not mention its doctrine on the extraterritorial application of the Convention – linked to the concept of jurisdiction based on the effective use of power – as argumentative reinforcement could be partly due to the fact that, in this case, unlike that of Hirsi Jamaa, the events unambiguously occurred in Spanish territory. However, this omission, together with the fact that it did expressly mention said argument in the opposite sense, that is, the possible exception of jurisdiction that would derive from the lack of effective exercise of the power of the State in its own territory, contributes to reinforcing the general restrictive tone of the ruling. In short, the Grand Chamber, unlike the Chamber, did not take the opportunity to consolidate in its case law a criterion for interpretation that could be key in the framework of intercepting irregular immigration and border externalisation.

The relationship between Article 4 of the Protocol and Article 3 of the Convention

The judgment at hand shows, in different parts, some confusion between the scope of Article 4 of the Protocol and that of the principle of non-refoulement derived from Article 3 of the Convention. This confusion, as explained below, contributes to the restrictive twist that the judgment implies, since it can cause a significant reduction in the scope of protection of both rights.

Even though Articles 4 of the Protocol and 3 of the Convention are closely related, their objective and subjective scopes of application are not the same. The former must be understood mainly within the framework of the rule of law and the prohibition of arbitrary action by public powers. ²⁶ It is a procedural guarantee that compels the state to take the minimum steps to ascertain the personal circumstances of aliens before proceeding to return them to another country, thus allowing them to present their arguments against their removal. ²⁷ Accordingly, the requirements of Article 4 of the Protocol ‘may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State’. ²⁸

For its part, the principle of non-refoulement established by the European Court’s case law under Article 3 of the Convention implies a prohibition on returning any alien to a country where his/her life or integrity would be threatened. ²⁹

Thus, the protection afforded by Article 3 of the Convention prohibits the expulsion of certain individuals, while Article 4 of the Protocol prohibits the expulsion of any person without minimum procedural safeguards. ³⁰ Indeed, these procedural safeguards are an essential preliminary step to avoid violation of Article 3 of the Convention, but this violation would only occur if the alien was in serious danger in the country of return. Article 4 of the Protocol should be interpreted as a formal, procedural, and absolute right, ³¹ while Article 3 of the Convention provides a material right, of substantive content, that must be weighed up.

Nevertheless, in some parts of the present judgment, the Grand Chamber seems to redirect the protection derived from Article 4 of the Protocol to the scope of Article 3 of the Convention, ³² as tending to restrict the scope of application of the prohibition of collective expulsions to potential applicants for international protection. The Court seems to have been swayed in some way by the Government’s argument that Article 4 of the Protocol is not applicable because the appellants are not in a situation of risk. ³³ In this sense, and without a clear purpose – Article 3 is not under discussion in the case at hand – the Grand Chamber reminds from time to time that ‘the applicants’ complaints under Article 3 were declared inadmissible by the Chamber’. ³⁴

By converting Article 4 of the Protocol into a procedural safeguard at the exclusive service of the principle of non-refoulement, thus aimed solely at preventing expulsion in cases of serious personal risk, the Court would drastically reduce the scope of the former.

The application of the procedural safeguard granted by Article 4 of the Protocol may bring to light legally relevant situations beyond that of potential applicants for international protection, such as that of unaccompanied minors, victims of human trafficking, or victims of a disproportionate use of force by border authorities. These situations may provide legal grounds to prevent or challenge an effective expulsion.

In the case of minors, both supranational and national laws restrict the state’s power to expel them from their territory. In fact, Spanish law directly prohibits the expulsion of unaccompanied minors (only foreseeing the possibility of ‘repatriating them’ as a protective measure, not as an administrative sanction or a measure to restore law and order). ³⁵ For its part, the Convention on the Rights of the Child also sets out specific requirements in this regard, as evidenced by the Opinion of the Committee on the Rights of the Child of 12 February 2019, ³⁶ which resolved a very similar case to the one at hand – also in the Melilla fences – but concerning an unaccompanied minor. On that occasion, the Committee considered that the minor’s pushback to Morocco by the Spanish authorities violated that Convention, specifically, the right to receive ‘special protection and assistance provided by the State’ as an unaccompanied minor (Article 20), the right to have his best interests taken into account as a primary consideration in the decisions affecting him (Article 3), and the right not to be exposed to violence or cruel, inhuman and degrading treatment (Article 37), in this case, in Morocco.

Particularly relevant in that regard is also the recent judgment in TQ/Staatssecretaris van Justitie en Veiligheid. ³⁷ According to its operative part, a combined reading of Articles 6.1 and 5(a) of the EU Return Directive and Article 24.2 of the Charter of Fundamental Rights of the European Union ‘must be interpreted as meaning that, before issuing a decision for return against an unaccompanied minor, the Member State concerned must perform a general and in-depth assessment of the situation of that minor, taking due account of the best interests of the child’. It also clarifies that states can only return minors if they have verified that adequate reception facilities are available for them in the state of return.

In conclusion, there are other legal grounds besides international protection that may be invoked to avoid or challenge an expulsion. Those grounds, together with the principles of the rule of law, constitute compelling reasons for preventing the state’s responsibility under Article 4 of the Protocol from being evaded by creating posts for requesting international protection at borders or externalising the service (in the territory of third countries). The scope for protection of the rights regulated under Article 4 of the Protocol and that under Article 3 of the Convention are not equivalent and, therefore, are not interchangeable.

New ground for exclusion of applicability of Article 4 of the Protocol: ‘culpable conduct’ of the alien

The main change in the judgment at hand is the establishment of a new ground for exclusion from the scope of protection of Article 4 of the Protocol, which is the alien’s ‘culpable conduct’. The Grand Chamber stated that, according to ‘well-established case law of the Court’, there will be no violation of the precept ‘if the lack of a decision for expulsion made on an individual basis is the consequence of an applicant’s own culpable conduct’. ³⁸

However, this interpretative criterion is not, as the Grand Chamber claimed, established case law in the context of Article 4 of the Protocol. Of the cases referred to by the Court to prove this statement, ³⁹ it has actually applied this criterion – and not just mentioned it ⁴⁰ – in two of them, and in a sense – and circumstances – very different from that used here. In the first case, Berisha, the Court used it to justify the fact that the respondent state, instead of issuing an individualised decision for each applicant, had issued a common one for both of them because they (a married couple) had pursued a joint asylum procedure, based on the same grounds and evidence. ⁴¹ In the second case in which the criterion was applied, Dritsas and Others v Italy, ⁴² the applicants’ conduct in refusing to show their identity papers to the police (at least when documentation was requested in order to draft the decision for removal, even though they could have shown it on an earlier occasion) was accepted by the Court as a justification for the issuance of non-individualised expulsion orders by the state. In both cases, the appellants had the opportunity to put forward their arguments against their expulsion, regardless of the form that the removal order eventually took. Nevertheless, according to the Grand Chamber’s new interpretation, not only can the alien’s conduct legitimately have an impact on formal elements of the return procedure directly connected with that behaviour, but it can also lead to the total absence of that procedure and the absolute impossibility for aliens to explain the circumstances in which they find themselves.

On the other hand, in the judgment at issue, and taking into account the arguments that led directly to the ruling, the ‘culpable’ conduct of the appellants would have consisted of avoiding the use of the available means of legal entry into Spain. However, the Court does mention other circumstances surrounding the case: land border, use of force, large numbers of people involved, danger to public safety, etc., ⁴³ without specifying the extent to which each needs to apply, or to what degree, in order to activate the exclusion of the protection afforded by Article 4 of the Protocol. ⁴⁴ It merely sets out an ambiguous two-tier test to determine whether the conduct of the appellants in avoiding the use of the available means of legal entry into Spain was ‘culpable’ or not for the purposes of Article 4. In this respect, in the first place it has to be assessed ‘whether, in the circumstances of the particular case, the State provided genuine and effective access to means of legal entry, in particular border procedures’ ‘to allow all persons who face persecution to submit an application for protection, based particularly on Article 3’. ⁴⁵ Second, if the State had provided such access, but the alien did not make use of it, ‘it has to be considered whether there were cogent reasons for not doing so which were based on objective facts for which the State was responsible’. ⁴⁶

Both the formulation of the test and its application to the case dealt with here suffer from a considerable lack of rigour.

As to the formulation, on the one hand, once again it is based on a misinterpretation of Article 4 of the Protocol. To consider that the establishment of international protection border procedures is sufficient to comply with the guarantees of Article 4 of the Protocol is to reduce the scope of the latter to the exclusive protection of Article 3 of the Convention, and only in certain circumstances (legal entry).

On the other hand, according to the test, the ‘guilty conduct’ exclusionary clause operates when any circumstance which cannot be proven to be attributed to the state prevents migrants from having access to the legal means of entry to a country, including, therefore, those circumstances for which the migrants are not responsible (‘guilty’) either. In other words, it would be in accordance with the Convention to exclude migrants from the scope of its protection if, for some circumstance not directly attributable to the state, they did not have the possibility of accessing the legal channels for entering. What is relevant for the purposes of the protection of the Convention, according to the Court, is not the situation of total lack of protection in which these people find themselves, but whether the respondent state is directly responsible for that situation. The potential of this idea to reduce the protection granted by the Convention to aliens in the broad context of the interception of irregular immigration and of offshoring of migration control is clear.

Turning to the application of these tenets to the case at hand, first of all, when the Grand Chamber concluded that applicants indeed had ‘genuine and effective’ access to means of legal entry into Spain, it really does not seem to pay due consideration to the official figures and expert reports on the extraordinary difficulty sub-Saharan migrants face, both de facto and de jure, in legally entering Spain. ⁴⁷

In particular, regarding the Beni Enzar international border crossing point, two of the third parties to the proceedings, UNHCR and the Commissioner for Human Rights of the Council of Europe, alleged that the Moroccan police prevent people coming from sub-Saharan Africa from accessing it, and this occurred both before and after 1 September 2014, the date on which Spain created an asylum office at that border post. ⁴⁸ The figures for applications for international protection submitted by persons from sub-Saharan Africa in Beni Enzar speak volumes in this regard: five from January to August 2014, ⁴⁹ not a single one between 1 September and 31 December 2014 or in the whole of 2015, two in 2016 and none in 2017. ⁵⁰

Even though the Court gave more credence to the allegations of the Government than to the reports of the mentioned organisations, ⁵¹ it did not deny that there was a problem with the great difficulty people of sub-Saharan Africa had in approaching Beni Enzar, as the organisations had denounced. The Court even assumed that those difficulties could have existed in the present case. ⁵² Nevertheless, according to the Grand Chamber, those reports were:

not conclusive as to the reasons and factual circumstances underlying these allegations. Some of them mention racial profiling or strict passport checks on the Moroccan side. However, none of these reports suggests that the Spanish Government was in any way responsible for this state of affairs. ⁵³

In this regard, the Court did not seem to take into consideration either the extent to which both Spain and the EU fund Morocco’s cooperation in strengthening Spain’s southern border. ⁵⁴

Therefore, according to this interpretation of the Grand Chamber, it is not enough – in order to enjoy the protection of Article 4 of the Protocol – that in a case of these characteristics the appellants demonstrate that they have not been able to access the legal procedures for entry into Spain. They would also have to prove something extremely difficult to demonstrate: that the obstacles that prevented such access are directly attributable to the Spanish state.

On the other hand, the Grand Chamber also argued that the applicants could have applied for international protection or working visas in the Spanish embassies or consulates in countries of origin or transit. ⁵⁵ However, considering the existing figures, both options are unrealistic. ⁵⁶ For example, in the year of the events, 2014, 18 applications for international protection were submitted by persons from the Ivory Coast at Spanish Embassies and consulates, and none by persons from Mali. ⁵⁷ In Spanish embassies and consulates throughout Africa, only 1,041 visas were granted to people from the Ivory Coast and 995 to people from Mali (in contrast with the 136,419 issued to people from Morocco). ⁵⁸

In conclusion, the lax and formalistic way in which the Court accepted the existence of ‘genuine and effective’ means of access to the territory in this case clashes with the realism with which it usually interprets the Convention. ⁵⁹ Detachment from reality, together with the logical inconsistency of including within the ‘culpable conduct’ of the appellants circumstances that may not be attributable to them (it suffices that they are not attributable to the state either), separates this decision from the standard of protection achieved by the Court until now in this issue. The exclusion of certain individuals from the scope of protection of the Convention for the mere fact of having committed the administrative offence of attempting to enter Spain without authorisation is now possible.

The impact: judgment of the Spanish Constitutional Court 172/2020, of 19 November

The impact of the judgment in question was evident in Spain some months later, in a relevant and expected ruling of the Spanish Constitutional Court on the constitutionality of the reform of the Immigration Act which legalised the pushback of aliens in the borders of Ceuta and Melilla. According to the new regulation: ⁶⁰

1. 1. Aliens attempting to penetrate the border containment structures in order to cross the border in an unauthorised manner, and whose presence is detected within the territorial demarcation lines of Ceuta or Melilla, may be returned in order to prevent their illegal entry into Spain.

2. 2. Their return shall in all cases be carried out in compliance with the international rules on human rights and international protection recognised by Spain.

3. 3. Applications for international protection shall be submitted in the places provided for that purpose at the border crossing points; the procedure shall conform to the standards laid down concerning international protection.

The appeal against this provision, brought by 114 deputies from different parliamentary groups of the Congress of Deputies, alleged specifically the violation of Articles 9.3 (prohibition of arbitrary action of public authorities), 106 (judicial control of administrative action) and 24 (right to obtain effective protection from the Courts) of the Spanish Constitution, which are the cornerstones of the Spanish rule of law. They also claimed that the reform violated the jurisprudence of the European Court of Human Rights on the principle of non-refoulement and prevented access to the right of asylum provided for in Article 13.4 of the Spanish Constitution.

The Constitutional Court ruled that the norm challenged does not breach the Constitution provided that certain conditions are met, namely, that judicial control of the expulsion is possible and that the execution of the return complies with international obligations.

In favour of the constitutionality of the rule, the Constitutional Court argued, first of all, that, insofar as the geographic location of Ceuta and Melilla is unique – the only external border of the Schengen area in African lands – which ‘on many occasions, causes the Spanish State to be overwhelmed’, the establishment of a specific regime for such border posts ‘cannot be considered to be unreasonable or lacking justification’. ⁶¹ Thus, the Constitutional Court applied a test of reasonableness on the measure, instead of the one of proportionality that would correspond in this case due to the involvement of fundamental rights.

Second, the Court invoked the jurisprudence established by the European Court in NT, ND to defend the argument that, as long as there are border crossing points that ensure the right to apply for international protection, States ‘may refuse entry to their territory to aliens, including potential asylum-seekers, who have failed, without cogent reasons […], to comply with these arrangements by seeking to cross the border at a different location’. ⁶² In this sense, the Constitutional Court clarified that the constitutionality of these practices does not depend on the presence of a large and violent group. Hot returns are also constitutional in the case of individual entries.

Furthermore, according to the Constitutional Court, since the state has complied with its obligation to provide effective means of legal access to Spain, specifically by creating border posts where international protection can be applied for, it does not violate the principle of non-refoulement nor the right of asylum. ⁶³

Regarding the alleged violation of the aforementioned Articles of the Constitution, the Spanish Court stated that the fact that the Spanish security forces can expel aliens without resorting to an administrative procedure does not mean that this material action is beyond judicial control and the individuals affected by it cannot resort to the courts to appeal the expulsion. ⁶⁴

In addition, the condition of constitutionality imposed by the Constitutional Court on the need for pushbacks to be carried out with respect to international obligations implies, among other things, according to that Court, the obligation of state security forces to pay ‘special attention to the categories of particularly vulnerable people’ (such as unaccompanied minors, pregnant women, or people with severe disabilities).

As the dissenting opinion of the judgment points out, this condition is incompatible with the nature of hot returns. It is not possible to detect particular situations of vulnerability without carrying out a minimum individualised assessment of the cases. It is precisely the administrative procedure that gives visibility to cases of vulnerability and that makes judicial control of the measure possible.

Furthermore, the hypothetical identification of flagrant cases of vulnerability by the Spanish border guards does not solve the problem, since most of the situations of vulnerability are not obvious at first glance, but they also deserve protection in the light of constitutional and international legislation.

In conclusion, the resolution of the Constitutional Court is based on the same formalistic and unrealistic interpretation of the constitutional norms as the judgment of the Grand Chamber, thus preventing an effective protection of the rights involved. The idea that a sub-Saharan migrant can appeal a pushback to Morocco is often as unrealistic as that of him/her having access to genuine and effective mechanisms to reach Spain. And in turn as unrealistic as the probability that the Spanish security forces, in the act of handing over of aliens to the Moroccan authorities, will identify and protect those among them who fall into the category of vulnerable individuals.

Conclusions

The system of protection of immigrants against return which has been forged over the past decades in European Court case law – and from there, extrapolated to other instances – rests on several different aspects.

In the first place, there is an absolute procedural right, ex Article 4 of the Protocol, which requires returns to be made under individual procedures with a minimum of guarantees. This right is, in turn, the key to uncovering certain legally relevant situations and, consequently, to protecting other substantive and procedural rights, such as the right to not be expelled to a country where the life or integrity of the individual will be placed at risk (Article 3 of the Convention), the special protection for vulnerable categories, and the protection from mistreatment at borders. The procedural guarantee under Article 4 of the Protocol is also necessary to be able to appeal against the expulsion (Article 13 of the Convention).

Lastly, the rights mentioned must be protected beyond the borders of the states which are parties to the Convention, whenever they have an effective control (that is, jurisdiction) over a specific situation.

The judgment of the Grand Chamber analysed above, by altering the interpretation of the guarantee contained in Article 4 of the Protocol, upsets the whole protection system. Thus, the new exception to the application of this precept created in this judgment – the one arising from the ‘culpable’ conduct of the appellant – entails depriving a large number of immigrants from protection. To be specific, those who attempt to enter the territory by irregularly crossing a land border are left without the protection provided by Article 4 of the Protocol when in this border there are posts where it is possible to apply for international protection.

And given the character of ‘key right’ of the guarantee contained in Article 4, those aliens would also be excluded from the protection of the rights that are indirectly guaranteed under that piece of legislation, such as those contained in Articles 3 and 13 of the Convention or the special protection for people in vulnerable categories.

Furthermore, the judgment of the Grand Chamber has been handed down at a time of changes in the European model for handling irregular immigration, changes which are advancing in the same direction of disabling the level of protection previously achieved, and which have found an exceptional breeding ground in the closing of state borders due to the Covid-19 pandemic. ⁶⁵ In this respect, not only has the use of hot returns progressed ⁶⁶ (including in making them legal, as seen from the Spanish Constitution Court ruling discussed above) but there has also been an externalising of the management of irregular immigration, obtaining the cooperation of third countries for slowing down the arrival of immigrants in Europe and for readmitting those intercepted in migratory crossings. ⁶⁷ These interceptions are also increasingly being placed in the hands of those third countries, ⁶⁸ thus ensuring that European states are relieved of any responsibility arising from the extraterritorial exercise of their jurisdiction.

Given this scenario, the European Court’s function of providing real, effective (as opposed to theoretic and unrealistic) protection ⁶⁹ for rights under the Convention is key to checking the devaluation of the system for the protection of immigrants in Europe. In our opinion, in the judgment analysed, the Grand Chamber has not fulfilled that obligation. It remains to be seen whether, in forthcoming judgments – several appeals are pending against Spain for similar, though different, problems, also involving alleged mistreatment at the border ⁷⁰ – the European Court will be willing and able to rectify its position.