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By Iris Goldner Lang, Jean Monnet Professor of EU Law and Holder of the UNESCO Chair on Free Movement of People, Migration and Inter-Cultural Dialogue, University of Zagreb.

I am grateful to Philippe de Bruycker, Tamara Ćapeta and Romain Lanneau for their help and comments.

Since the implementation of the EU-Turkey Statement (see here and here on this blog) in March 2016 until 28 February 2020, the Greek-Turkish border had been mostly closed, with Turkey hosting around 3.6 million Syrian refugees (out of a total of over 4 million refugees). On 28 February 2020, Turkey announced that it would no longer stop migrants and refugees trying to enter the EU. According to the Greek media, the following day more than 4,000 persons repeatedly tried to cross the Greek border. The border was opened only on the Turkish side, as the Greek police stopped everybody who tried to cross the border, by using tear gas and rubber bullets. The situation continued to escalate in the following weeks with tens of thousands of people gathering on the Turkish side after having been reportedly taken there by Turkish buses. At the same time, Greece decided to suspend all asylum applications for one month. (on this blog see here and here about the geopolitical context of this crisis).

The Greek border conduct was strongly supported and praised by EU leaders. The President of the European Commission openly thanked Greece as Europe’s “shield” in blocking the entry to the EU and promised financial and material support, as well as the deployment of Frontex. On top of this, the Commission has refused to release a preliminary legal assessment of the Greek decision to temporarily freeze all asylum applications. In the meantime, the number of people trying to cross the border considerably decreased.

The EU leaders’ reaction to the possibility of a new migration influx reveals their determination to prevent the Western Balkans route from happening again. The EU political leaders’ reasoning behind their political and practical reactions to the attempt of thousands of migrants to cross the Greek-Turkish border in February and March 2020 was motivated by several factors:

  • First, it was prompted by the EU’s experience of the dismantling effect of the 2015/2016 refugee influx on the functioning of EU migration and asylum policies and on the EU as a whole, by its security concerns and xenophobic fears;
  • Second, the rigid reaction was additionally induced by the fear of frontline Member States – such as Greece and Croatia which was at that time presiding the EU – that, in case of a new influx, they would have to conduct the initial processing of all asylum applications by themselves;
  • Third, the EU’s conduct at the Greek-Turkish border was probably also prompted by the behaviour of the CJEU of Justice and of the ECtHR.

Only the combination of Member States’ fears with their belief that their actions would not be judicially condemned can explain the rigidity of the measures, accompanied by political discourse dominated by security concerns and fears of uncontrolled migration and secondary movements.

As regards the Luxembourg court, its avoidance to adjudicate on the legality of the legally strange EU-Turkey deal in 2017 and 2018 enabled the deal to endure and Turkey to use the migrants it hosts to blackmail the EU. Had the CJEU decided to deal with the substance of the case, it is likely it would have had to annul the deal due to its non-compliance with EU law. The non-existence of the deal does not mean that there would be no influx, but it would take place under different circumstances and it would not be managed by Turkish authorities, as they would have no incentive to do that. In addition, the CJEU’s avoidance to decide on the substance of the deal is an assurance to Member States that the Court will also not annul the deal in the future and that it is safe to reinstate it.

Additionally, the CJEU’s judgment in A.S. and Jafari highlighted the fragility of solidarity in the EU. It sent a clear message to EU Member States that – if confronted with a new refugee influx into their territories – each Member State would have to deal with the consequences on their own, based on a strict reading of the Dublin state-of-first-entry rule and with slim chances of relocation to other Member States.

On the other hand, the ECtHR’s judgement in N.D. and N.T. was viewed by EU Member States as a signal that blocking migrants from entering Greece would get judicial approval. This Grand Chamber judgment from 13 February 2020 can be viewed as the court’s endorsement under the circumstances of the case of Member States’ use of force and other deterrent activities when confronted with the possibility of a new migration influx, in a situation similar to the one at the Greek-Turkish border. The ECtHR’s ruling sends a strong signal to the CJEU – should it be confronted with a similar case – to rule that Member States’ collective expulsion or “push backs” of refugees and migrants who try to enter the EU irregularly, outside the border crossing points, is not contrary to EU law.

The case concerned the immediate return to Morocco of two nationals of Mali and Côte d’Ivoire who arrived in Morocco in March 2013 and stayed in a migrants’ camp close to the Spanish enclave of Melilla until 13 August 2014, when they attempted to enter the Spanish territory by climbing the fences surrounding Melilla, together with two groups of altogether more than 600 individuals. As they reached the Spanish ground, they were apprehended by the Spanish police, who handcuffed them and handed them over to the Moroccan authorities, without undertaking any identification procedure and without enabling N.D. and N.T. to explain their personal circumstances.

The Strasbourg court decided that the lack of individualised removal procedure in the circumstances of the case did not violate either Article 4 of Protocol No. 4 (prohibition of collective expulsion) to the ECHR or Art. 13 ECvHR (right to an effective remedy), as it was the consequence of the applicants’ own conduct. According to the Court, the applicants chose not to make use of the official entry procedures to enter the Spanish territory lawfully. Instead, they took advantage of the fact that they were part of a large group of individuals which used force in its attempt to cross the border. Consequently, the Court concluded that the lack of individual removal decisions could be attributed to the applicants’ unlawful behaviour.

The judgment in N.D. and N.T. can be seen as a departure from the ruling in Hirsi, where the Court decided that the interception at sea by the Italian authorities of Somali and Eritrean migrants, who were travelling from Libya, and their sending back to Libya violated Art. 3 ECHR, as they faced a risk of being arbitrarily returned to their countries of origin. However, the ruling in N.D. and N.T. does not give a carte blanche to collective expulsions, but states that it is justified if it is the consequence of the applicant’s own conduct and this is the case provided two conditions are met:

  • First, what needs to be considered is whether the respective state provides “genuine and effective access to means of legal entry, in particular, border procedures for those who have arrived at the border”;
  • Second, if the answer to the first question is positive, then one needs to examine whether there is an “absence of cogent reasons why the applicant did not make use of official entry procedures, which were based on objective facts for which the respondent State was responsible” (paragraph 201).

It seems logical that the existence of a deal between a Member State and a neighbouring state, like the EU-Turkey Statement, which has the effect of preventing individuals from getting to the border would make that Member State responsible. When applied to the Greek situation, this could indicate the existence of Greek responsibility in a situation where the applicant could not use the official entry procedures because he/she was prevented from this by Turkey on the basis of the EU-Turkey Statement. It is questionable whether the Court would have ruled differently in case of an individual attempt to cross the border which was devoid of any security threat and what criteria the Court would use to measure the existence of such a threat (see here and here on this blog).

What is the impact of N.D. and N.T. on the CJEU, the EU political institutions, and its Member States? The ECtHR’s judgment is a signal to EU Member States that under certain conditions it is not illegal, under the European Convention human rights standards, to collectively expel refugees who try to enter the EU. It could encourage similar behaviour in the future. Most likely the judgment contributed to the Greek and other EU leaders’ reactions to the Greek border crisis in early 2020 and it could again encourage similar behaviour in case of a new influx. It is also likely that – if confronted with a similar case – the Luxembourg court will be influenced by the Strasbourg case law and decide that collective expulsion in circumstances similar to the ones in N.D. and N.T. does not violate EU law, including the EU Charter of Fundamental Rights.