The European court of human rights has been accused of “completely ignoring the reality” along the continent’s borders after it ruled that Spain acted lawfully when it summarily deported two migrants who tried to scale the border fence separating Morocco from Spanish territory six years ago.
The Strasbourg court announced its decision on Thursday in the case brought by the two men, who are from Mali and the Ivory Coast.
The men, known for legal reasons as ND and NT, were among hundreds who climbed the fences that surround Spain’s north African enclave of Melilla on 13 August 2014.
After spending several hours perched on top of the inner fence, they climbed down and were handcuffed by Spanish Guardia Civil officers and handed over to Moroccan authorities.
The pair say they were never given a chance to explain their personal circumstances or receive help from lawyers or interpreters.
But the court found there had been no violation of the European convention on human rights because the men had attempted to enter Spanish territory in an “unauthorised” manner.
“The court considered that the applicants had in fact placed themselves in an unlawful situation when they had deliberately attempted to enter Spain … by crossing the Melilla border protection structures as part of a large group and at an unauthorised location, taking advantage of the group’s large numbers and using force,” it said.
“Consequently, the court considered that the lack of individual removal decisions could be attributed to the fact that the applicants – assuming that they had wished to assert rights under the convention – had not made use of the official entry procedures existing for that purpose, and that it had thus been a consequence of their own conduct.”
It said the men could have applied for visas, or for international protection, at the border crossing point or at Spanish consulates in Morocco or in their home countries.
The grand chamber’s ruling comes three years after the same court unanimously ruled Spain had violated rules that prohibit collective expulsion and denied the migrants their right of effective remedy. The latest ruling followed an appeal by Spain.
Human rights groups fear the ruling will set a dangerous precedent across the EU and allow Spain to continue operating its express deportations, which are also known as push-backs or “hot returns”.
In 2018, 658 people were summarily deported from Melilla and Spain’s other north African enclave of Ceuta.
“The decision completely ignores the reality at European borders, and particularly the situation of sub-Saharan Africans at the Spanish-Moroccan frontier,” said Wolfgang Kaleck, the general secretary of the European Centre for Constitutional and Human Rights, which supported the men in their case.
“Moreover, it will be perceived as a carte blanche for violent push-backs everywhere in Europe … Push-backs at the border to Morocco are a longstanding Spanish practice, which has become a model for other states along the European Union’s external land borders.”