Exploring the ‘Bottom-Up’ and ‘Top-Down’ Dynamics in the Restriction of Access to Asylum in N.D. and N.T. V. Spain

My contribution, based on a paper that I recently published, takes as a starting point the Grand Chamber judgment in N.D. and N.T. v. Spain. This judgment, delivered in 2020, marked a watershed for the access to asylum in Europe: the European Court of Human Rights (ECtHR) indirectly predicated access to asylum on regular entry to the territory of the Contracting States. It did so by introducing novel limitations to the prohibition of collective expulsion of aliens under Article 4 of Protocol No. 4 ECHR (A4-P4) which did not previously exist (or at least not in that manner) in the Court’s jurisprudence. Essentially, the ECtHR held that, under certain conditions, States could summarily remove migrants, including potential asylum-seekers, who irregularly crossed their borders without incurring in a violation of A4-P4. This erected a new barrier to asylum that featured in subsequent cases, and which might soon play a crucial role in three cases currently pending before the Grand Chamber concerning the EU-Belarus border. The purpose of this paper is not an in-depth discussion of the judgment, the reasons behind it or other aspects that have been thoroughly addressed by the doctrine. Instead, this paper explores an aspect that has been largely overlooked, but which might offer a new perspective on the above developments: what I have called a ‘bottom-up’ influence of the State on the ECtHR in this case and its subsequent ‘top-down’ effect back on the State level. This analysis stems from the observation that Spain was the first State in the Council of Europe to conduct land pushbacks, to legalise land pushbacks and to be brought before the ECtHR on account of a land pushback (in N.D. and N.T.). Spain came before the Strasbourg Court with law and practice clearly contrary to A4-P4 as interpreted at that time by the ECtHR. As such, a finding of violation, such as the one that the Chamber initially found, was expected. However, the Grand Chamber overturned the Chamber judgment, and strikingly held that Spain had not violated A4-P4. This reversal was only possible by introducing new restrictions to A4-P4 through the so-called ‘culpable conduct test’. For this reason, the ECtHR was accused of ‘inventing’ new limitations to A4-P4 in order to reach a predetermined outcome. However, as I demonstrate in my paper, the ECtHR did not ‘invent’ anything. Rather, it simply imported the arguments of the Spanish Government, repackaged them into the ‘culpable conduct test’ and incorporated them into its own jurisprudence. This not only led it to find no violation in this case, but also to permanently modify the scope of application of A4-P4, and to indirectly (yet severely) restrict access to asylum. This ‘bottom-up’ influence had, in turn, a ‘top-down’ effect back on the Spanish system. Indeed, the Spanish Constitutional Court decided on the legality of pushbacks at the Moroccan-Spanish border following the Grand Chamber judgment, and endorsed the practice based thereon.