An EU migration policy revolution from the courts?

The court ruled that the Spanish government did not violate the principle of non-refoulment (prohibition of collective expulsions) contained in Protocol 4 of the European Convention on Human Rights.

The ruling represents a welcome change in the judgements of the ECHR, allowing a European government to exercise a degree of control over its borders.

The two applicants in the case were nationals of Mali and Ivory Coast respectively.

In 2014, the two attempted to break into Spain, as part of a large group, by overcoming the border fences between Morocco and the Spanish territory of Melilla.

After climbing to the top of the border fence, "N.T." and "N.D." climbed down with the help of the Spanish police and were taken back to Morocco. (Later in the same year, both applicants managed to illegally enter Spain. One's asylum application was rejected and the other never applied for asylum.)

When the ECHR heard the case in 2017, it ruled in favour of the applicants and awarded them damages.

Now, in February 2020, the Grand Chamber of the same court overturned that decision on appeal from the Spanish government.

The great novelty of the 2020 ruling is in that, according to the court, the applicants had not used official entry procedures and that, because of their own conduct, Guardia Civil was justified to return them to the Moroccan police without examining their personal circumstances.

Implications for EU border control

The long-term implications for European border policies are less clear than some commentaries suggest.

First, the court's reasoning was based on the recognition that the applicants were safe and legally present in Morocco. They were not justified in illegally entering Spain. We do not know how the court would have ruled if their individual circumstances were different.

Second, the ruling covered the prevention of entry at Spain's land borders. Situations at sea are different in that international maritime law applies there.

Third, the ruling was predicated on the fact that in this specific case, the breach of the Spanish border occurred en masse. It is not clear how an individual breach would have been assessed by the court.

Things will become somewhat clearer when the Spanish Constitutional Court rules on the relevant national legislation in light of the present ruling.

Because of the specificity of the present case, this judgement does not bring Europe closer towards Australia's policy of zero tolerance towards irregular border crossings.

Australia applies a different, much more restrictive interpretation of non-refoulement. The sense of control thus generated results in sustained support for the country's open policy for legal migration.

EU's policy on irregular migration

The principle of non-refoulement was developed in the wake of World War Two to prevent a repetition of forcible returns of hundreds of thousands of Jews and Soviet citizens to their countries of origin.

The principle was codified in the Refugee Convention of 1951, the European Convention on Human Rights and other international treaties.

The principle of non-refoulement has not been designed to facilitate smuggler-organised breaches of national borders. Yet that is how the Strasbourg court has interpreted the applicable international treaties.

Even the final ruling on "N.T." and "N.D." v. Spain does not fundamentally change the prevailing interpretation. A vast body of over-generous rulings by the ECHR remains in place.

During the hearing, human rights organisations argued that the applicants were discriminated against by the Moroccan authorities which did not allow them to apply for asylum in Spain.

Going beyond the specifics of the present case, the possibility of applying for asylum from abroad needs to be looked at.

To remain credible, European migration policies ought to combine vigilant border policing with asylum procedures through managed resettlement of asylum seekers from third countries to the EU.

Under the existing lavish interpretations of non-refoulement at the EU border, substantive European commitment to resettlement will never be formed. Who would welcome the stranger through the front gate when the back doors and side windows can't be shut?

Still, it is just possible that the present ruling will open the way to a much-needed judicial pragmatism on policies on irregular migration.

More restrictive court judgements would result in broader support for common migration policies across the EU.

Critics misread the public mood when they claim that migration restrictions are a sign of creeping authoritarianism. In reality, authoritarian leaders are given free reign when the public fears a migration that is out of control. The 2015-16 refugee crisis is a case in point.

Opinion polls have been consistently showing the European public's dissatisfaction with the bloc's handling of irregular migration. Migration policies designed without public support will only continue contributing towards the current malaise of the West.