A brand-new exclusionary clause to the prohibition of collective expulsion of aliens: the applicant’s own conduct in N.D. and N.T. v Spain

In its ruling of 13 February 2020 in N.D. and N.T. v Spain, the Grand Chamber of the European Court of Human Rights (ECtHR or ‘the Court’) found that pushbacks at the Spanish–Moroccan land border comply with Article 4 Protocol 4 of the European Convention on Human Rights (ECHR, or ‘the Convention’), which prohibits the collective expulsion of aliens.1 Finding that Spain had exercised jurisdiction over the events, the Grand Chamber determined that the removals at stake constituted an ‘expulsion’ but lacked a ‘collective’ nature. In reversing the previous ruling of the Chamber,2 the Court added a novel exclusionary clause to Article 4 Protocol 4 and developed a two-step test to establish whether the responsibility of the respondent State should be excluded in cases where applicants (attempt to) enter a Country in an unauthorised manner. The first step is aimed at assessing whether the destination Country provided genuine and effective access to means of legal entry into its territory and whether the applicants made use of it. Where the State provided such access, but the applicants did not avail themselves of it, the Court moves forward to the second step, which is meant to establish whether the applicants had cogent reasons not to do so. These cogent reasons must be based on ‘objective facts for which the respondent State was responsible.’3