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By Ulrike Brandl, Ass. Prof. at the Faculty of Law, University of Salzburg & Philip Czech, Senior Scientist at the Austrian Human Rights Institute, University of Salzburg

The last years have seen a major shift in European states’ policy in the field of asylum and migration towards an increasingly muscular surveillance of external borders. This trend has already found its resonance in the case law of the European Court of Human Rights (ECtHR). Following this shift, the major issue that links several of the most crucial judgments delivered in the past years regards states’ obligations arising from the European Convention on Human Rights (ECHR) to receive applications for international protection at their external borders or at the high seas and to preliminarily allow persons seeking protection to stay on their territory or under their jurisdiction until their claim has been decided on. From a legal point of view, the focus not only lies on Article 3 ECHR and its inherent non refoulement obligation but also on a right that had not played a significant role for quite a long time: the prohibition of collective expulsion enshrined in Article 4 of Protocol n°4 to the European Convention on Human Rights. The conclusion that this obligation does not allow the denial of access to the territory without an individualised decision is uncontested. The jurisprudence however still leaves scope for further clarifications what exactly is an individualised decision and inasmuch as a “culpable conduct” on the part of applicants can justify to reject them at the border without examining their individual circumstances.

In N.D. and N.T. vs Spain the Grand Chamber took the chance to clarify the implementations of the prohibition of collective expulsion for the Spanish policy of “hot returns” or push-backs at its enclave in Melilla; the Grand Chamber also established a new and still unclear connection between collective expulsion and legal pathways to submit applications for international protection. The most recent judgment in the case of M.K. vs Poland, delivered on 23 July 2020, provides some further guidance regarding the interpretation of the prohibition of collective expulsion and states’ obligations regarding asylum seekers arriving at their borders.

The case: Futile attempts to enter Europe on lawful paths

The judgment concerns three applications brought by thirteen Russian nationals of Chechen origin who tried to travel from Belarus to Poland between July 2016 and July 2017. While one of them had travelled alone, the other applicants are two families with minor children. They all repeatedly travelled to the border crossing at Terespol where they expressed their wish to apply for international protection towards the Polish border guards. On several occasions, they presented written applications, drafted with the help of lawyers who also came to the border to support them but were not allowed to see their clients. Each time, the border guards issued administrative decisions summarily turning the applicants away and forcing them to return to Belarus on the grounds that they were not legally entitled to enter Poland and had not applied for international protection. This practice  of the Polish authorities did not even change in the view of interim measures indicated by the ECtHR according to Rule 39 of the Rules of Court urging them to receive the applications for international protection, forward them to the competent authorities and not to remove the applicants to Belarus before their applications had been examined.

After briefly confirming that the events at issue fell under Poland’s jurisdiction for the purposes of Article 1 of the Convention – a finding that did not cause much efforts as the border checkpoint was situated on Polish territory and operated by Polish officials – and with the government’s objection concerning non-exhaustion of domestic remedies – a question to be dealt with later – the ECtHR ruled on four intertwined albeit separate issues: the possible violation of Article 3 on account of the denial of access to asylum proceedings and the applicant’s return to Belarus, the contested collective nature of the measures, the lack of a domestic remedy as a possible violation of Article 13 ECHR in connection with the mentioned rights and finally the failure to comply with the interim measures indicated by the ECtHR.

A duty to admit asylum seekers under Article 3 ECHR

Regarding the first core question of the case whether a return to Belarus would entail a risk of a violation of Article 3 as the applicants would be returned to Russia with the consequence of a risk of torture or inhuman or degrading treatment in Chechnya, the ECtHR reiterated that it was not its task to examine actual asylum applications on the merits, but rather to examine whether effective domestic procedures exist that guarantee protection against refoulement (para 169 of the judgment). According to established jurisprudence, in cases regarding removal of asylum-seekers to a third country, the authorities have the choice between either examining the application for international protection on the merits or ensuring themselves that there will be effective access to an adequate asylum procedure in the third country. Therefore, the main issue to be determined in the present case was whether or not the Polish authorities had thoroughly examined if there was a real risk that the applicants would be denied access to an effective asylum procedure in Belarus.

The Polish government relied mainly on the assertion that the applicants had never expressed a wish to apply for international protection. In the light of the coherent submissions made by the applicants as well as the documents submitted by them and in view of the fact that the ECtHR had sent some information on the applicants’ claims to the government when they were informed about the interim measures to be taken, the Court was not convinced by the government’s arguments. Furthermore, the applicants’ version was corroborated by several reports regarding the situation at the border between Poland and Belarus. For example, a report drafted by the Polish Children’s Ombudsman indicated the existence of a systematic practice of misrepresenting the statements given by persons seeking protection at the border in the notes drafted by the border guards. Therefore, as the authorities could not deny being aware of the applicant’s claims, they were under a procedural obligation to assess their applications. Moreover, the Court stressed that “the Polish state was under an obligation to ensure the applicant’s safety, in particular by allowing them to remain within Polish jurisdiction until such time that their claims had been properly reviewed by a competent domestic authority” (para 178). Regarding the issue of entry, the Court considered that a State cannot deny access to its territory to persons presenting themselves at a border checkpoint alleging a risk of ill-treatment if they have to stay in the neighbouring state (para. 179).

This reasoning is convincing and confirms States’ obligations with regard to the interpretation of Article 3 ECHR. As the Polish authorities did not accept the applications on various occasions, they did neither decide themselves if there would be risk of a treatment contrary to Article 3 in Belarus, nor did they decide the interesting question whether or not Belarus would grant effective protection. As Belarus is neither a member of the ECHR nor to the 1951 Refugee Convention, the assumption is that there would not be effective protection, a situation which was well known to Poland. Whereas in most situations where applications are not accepted there is no proof or evidence that the persons tried to submit such applications, these efforts were obviously well documented in the present case. The judgment also refers to independent reports concerning the situation indicating “a wider state policy of refusing entry to foreigners coming from Belarus, regardless of whether they were clearly economic migrants or whether they expressed a fear of persecution in their countries of origin” (para. 208). These reports also played a role in the assessment about the collective nature of the expulsion.

A right to apply for asylum at the border resulting from Article 4 of Protocol n 4

With regard to the second core question – the alleged violation of Article 4 of Protocol n°4 – the judgment confirms that the prohibition of collective expulsion applies in situations where applicants try to enter via land as in the present case (see also N.D. and N.T. vs Spain) or sea borders and where persons are intercepted at the Highs Seas (Hirsi Jamaa vs Italy, Khlaifia vs Italy).

The Court first made clear that there had been an expulsion. The argument by the Polish government that the applicants were not allowed to enter and thus no expulsion had taken place, was not accepted. This statement repeats previous assessments and confirms that the notion “expulsion” has to be interpreted in the “generic meaning in current use (that is to say ‘to drive away from a place’) … and should be applied to all measures that may be characterised as constituting a formal act or conduct attributable to a State by which a foreigner is compelled to leave the territory of that State, even if under domestic law such measures are classified differently” (para. 198; see also Hirsi Jamaa, para. 174). States cannot exclude the applicability of Article 4 of Protocol n 4 simply by avoiding to use the notion “expulsion”.

Regarding the collective nature of the expulsion, the Court requires a sufficiently individualised examination. This examination has to be carried out by assessing all individual circumstances and also the “general context at the material time” (M.K. vs Poland, para. 201). As the authorities have to examine the personal circumstances of the individuals, they have to give them an adequate opportunity to put forward their arguments against the expulsion. The exact details of the assessment of personal circumstances are still not fully clear. In N.D. and N.T. vs Spain the Court concluded by referring to Khlaifia vs Italy that Article 4 of Protocol n 4 does not guarantee the right to an individual interview in all circumstances, as the requirements of this provision 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” (Khlaifia, para. 248). In the instant case, however, the individual decision denying entry to Poland “did not properly reflect the reasons given by the applicants to justify their fear of persecution” (para. 206).

While the ECtHR has reiterated that the receiving state has to give refugees a chance to present their individual situation and to submit asylum applications, the way how this individual assessment has to be organised still leaves room for clarification. The Court so far required that applicants use the possibility of drawing the attention of the national authorities to any circumstance that might affect their status and entitle them to remain in the respective state. In Khlaifia vs Italy the Chamber (see the contribution of Ana Rita Gil in this blog) came to the conclusion that Article 4 of Protocol n 4 had been violated. The Grand Chamber however decided that the expulsions were not collective, as the applicants had remained in Italy for a couple of days (between nine and twelve days) without using the possibility to draw the attention of the national authorities to the relevant circumstances. In this respect the judgment refers to the individual conduct of the applicants. In contrast to Khlaifia vs Italy and N.D. and N.T. vs Spain, in the present case the refusal of an individual assessment could not be attributed to the applicant’s own conduct, as they had attempted to cross the border in a legal manner at an official checkpoint (para. 207). These findings were further corroborated by independent reports on the situation at the eastern border of Poland. The consideration of the applicants’ conduct is a crucial element distinguishing the case of M.K. vs Poland from N.D. and N.T. vs Spain. In the latter case the Court found that the applicants had not made use of the existing legal procedures for gaining lawful entry to Spanish territory. It pointed to the efforts undertaken by Spain, in response to recent migratory flows at its borders, to increase the number of official border crossing points and enhance effective respect for the right to access them (N.D. and N.T. vs Spain, para. 232). Thus, the lack of expulsion decisions could be attributed to the fact that the applicants did not use the procedures. The possibilities of gaining access to the procedures were seen as sufficient and thus their expulsion was regarded as a consequence of their own conduct (N.D. and N.T. vs Spain, para. 231). In M.K. vs. Poland the Court concluded that the refusal to accept applications amounted to collective expulsion. The facts obviously support these conclusions. The applicants had attempted to use the legal pathways open to them. Interestingly enough, the Belarussian authorities had allowed them to approach the Polish border several times, so there was no doubt that they were able to use this system. In contrast, in N.D. and N.T. vs. Spain, the Court had assumed the existence of legal pathways without analysing the factual situation (cf the contribution of Carlos Oviedo Morenos on Verfassungsblog). Spain had established legal entry possibilities, but in fact they were hardly effective or even completely ineffective (according to Daniel Thym, “the factual situation of the N.D. & N.T. case discloses a noticeable mismatch between potential aspirations and factual entry options: … the number of asylum requests at border crossing points and corresponding countries of origin reveals their illusory character for West-Africans; similarly, the number of working visas for these states was minimal).

The reasoning in M.K. vs Poland allows the conclusion that states have to establish legal entry procedures that must not be completely ineffective. The cases of N.D. and N.T. vs Spain on the one hand and the of M.K. vs Poland on the other can be seen as two extremes: While in the Polish case there could be no doubt that the applicants had done all or even more that could be expected by them to enter Poland in a legal way, in the Spanish case the applicants had taken part in an organised attempt by a large group of migrants to cross the border fence in an obviously illegal way. It has to be seen how the ECtHR will deal with cases where the facts are less clear-cut. In any case, even when the requirements regarding effectiveness of entry options still leaves room for interpretation and clarification, it is clear that asylum seekers should try to make use of them even if their accessibility and effectiveness is open to doubt. Otherwise they risk that their own “culpable” conduct is held against them.

A right to a remedy with automatic suspensive effect against collective expulsion

In the light of these findings on Article 3 of the Convention and Article 4 of Protocol n 4, the applicants obviously had an arguable claim for the purpose of Article 13. Therefore, it had to be determined whether they had at their disposal an effective remedy to challenge their return to Belarus. As the ECtHR had already found that their asylum applications were not adequately assessed, the only remaining issue was the existence of an appeal. This issue was determined in the context of the government’s objection regarding the non-exhaustion of domestic remedies. The Court found that the applicants did not have access to an adequate remedy as any appeal would not have had automatic suspensive effect on the return process (para. 146). Therefore, it concluded that there had also been a violation of Article 13 of the Convention taken in conjunction with Article 3 and Article 4 of Protocol n 4. The Court made clear that not only an alleged violation of Article 3 requires a remedy with automatic suspensive effect, but also a claimed violation of the prohibition of collective expulsion.

Lastly, the Court dealt with the government’s failure to comply with the interim measures indicated under Rule 39 of the Rules of Court. These measures had included clear instructions to refrain from returning the applicants to Belarus. As the information regarding these measures had been sent to the Polish government and a copy of a letter regarding this issue received by their representatives had been presented by the applicants at later attempts to cross the border, it was obvious that the measures had been disregarded. Accordingly, the Court found that Poland had failed to discharge its obligations and had therefore caused a violation of Article 34 of the Convention.

A shift towards effective protection at Europe’s borders?

For many observers, the Grand Chamber’s judgment in N.D. and N.T. vs Spain was a major disenchantment as it seemed to legitimize the indiscriminate push-backs of people seeking refuge at Europe’s land borders (see the comments by Maximilian Pichl and Dana Schmalz, Tino Hruschka, Nora Markard, Carlos Oviedo Morenos and Hanna Hakiki; with a more positive picture Daniel Thym). However, the case of M.K. vs Poland gives rise to some hope again, as the ECtHR was clear in the (unanimous) finding of a violation of the Convention and its Protocol n 4. The crucial issue is whether this divergent outcome results from the different facts of the cases or whether they suggest a less restrictive approach of the ECtHR.

As far as Article 4 of Protocol n°4 is concerned, the facts of the two cases are similar inasmuch as in each case foreigners tried to cross the border in order to apply for international protection. And in both cases, they were returned summarily without an adequate individual assessment of the reasons brought forward to support their claims. While in the Spanish case the migrants were apprehended when they tried to cross the border fences between Morocco and Melilla in an obviously unlawful attempt to enter Spanish territory, in the Polish case the applicants repeatedly presented themselves at the official border checkpoint asking to enter the territory. In N.D. and N.T. vs Spain, the ECtHR relied heavily on the circumstances and the context of the attempts to enter the territory of the Spanish enclave: According to its findings, the applicants had taken part in a storming of the Melilla border fences, “taking advantage of the group’s large numbers and using force”, instead of making use of “the existing legal procedures for gaining lawful entry to Spanish territory”. Therefore, the Court considered that the lack of individual removal decisions could be attributed to the applicants’ own “culpable conduct” (para. 231). The crucial factor distinguishing the two cases therefore lies in the way the applicants tried to cross the borders and in the respective existence of lawful paths to enter in order to seek protection. Although from a factual point of view the Court’s findings regarding the opportunities to apply for asylum in a consulate or embassy or to enter Melilla via the Beni Enzar border crossing point are highly questionable in the view of several independent reports on the situation (they can be found in the judgment), the comparison with the case of M.K. vs. Poland suggests a narrow reading of N.D. and N.T. vs Spain. Push-backs at land borders without an examination of claims for international protection raised by the persons concerned are therefore only compatible with Article 4 of Protocol n°4 if there are lawful ways available to enter the territory, either by accessible border crossings or via the embassies or consulates. Only if a state leaves open such lawful ways to seek protection – and the access is not de facto blocked by the neighbouring state (a tricky question which it is difficult to be assessed by the respondent state) – it can be legitimate to push back migrants who deliberately try to bypass border controls instead of making use of the lawful paths open to them. And even here a further restriction takes place, as the Court’s reliance on the “use of force” and “taking advantage of the group’s large numbers” in an organized operation leaves open room of manoeuvre for not applying this approach to people crossing borders at places where they are less militarised and therefore neither the “use of force” nor an organized attempt to overrun the border guards is required.

Another distinguishing factor regards Article 3 of the Convention. In the case of N.D. and N.T. vs Spain, the respective parts of the applications had already been declared inadmissible (para. 4 of the Grand Chamber’s judgment), so that these claims were not a part of the case to be decided by the Grand Chamber. In contrast, it was quite obvious in M.K. vs Poland that Article 3 was engaged due to the claims raised by the applicants in front of the border guards as well as in their requests for interim measures.

In times of increasing political pressure in the contested field of international protection, the Court’s judgment is to be welcomed as a signal that Strasbourg is still willing to grant an effective protection of human rights. It remains to be seen which approach the Court will follow in forthcoming cases and whether the states will open legal paths for refugees or rather try to find new ways to hinder access to their external borders