A restrictionist revolution? A counter-intuitive reading of the ECtHR N.D. & N.T. judgment on “hot expulsions”
This piece was written by Daniel Thym, Chair of Public, European and International Law at the University of Konstanz, Germany, and Co-Director of the Research Centre Immigration & Asylum Law. It was published by EU Immigration and Asylum Law and Policy blog on 17 February 2020.
In times of twitter and social media, we get used to quick reactions and clear-cut opinions that lend themselves to intuitive approval or rejection. Not surprisingly, the immediate response to the Grand Chamber’s N.D. & N.T. judgment rectifying the Spanish policy of “hot expulsions” of irregular migrants was met with “shock” – a “slap in the face” of human rights law that “refutes the raison d’être” of the European Convention on Human Rights (ECHR). These first analyses are correct insofar as they express the utter disappointment of the authors at the immediate outcome of the case and the initial conclusion that judges backtracked from an earlier dynamic interpretation of the prohibition of collective expulsion.
This blogpost presents a different reading. It will highlight that the ruling is defined by a series of inbuilt ambiguities that combine restrictionist tendencies with dynamic elements, which are bound to cause heated debates of both principle and practice in the coming years. These uncertainties concern the scope and the meaning of the novel exception for those entering illegally and the normative contours of the – potentially wide-ranging – judicial insistence on legal pathways for refugees and migrants. Moreover, greater emphasis should be put on the statutory guarantees of EU asylum law, which are better placed to assess the situation at the external borders. Such technical issues would gain further relevance if follow-up cases confirmed the intuitive impression that the N.D. & N.T. judgment heralds an endpoint to 25 years of migrant-friendly human rights case law. [Read more here.]