N.D. and N.T. v. Spaina and the Two-Tier Test for Collective Expulsion

Written by Nisra Sookpradist

Edited by Gursehaj Gosal

Nisra is a sophomore in the Dual BA Program between Sciences Po and UC Berkeley, majoring in Politics and Government. She's passionate about politics, law, languages, and human rights especially on issues concerning borders and immigration.

In 2020, the European Court of Human Rights (ECtHR) delivered one of the most controversial judgements of recent years in N.D. and N.T. v. Spain. The Court’s decision upheld Spain’s expulsion of two asylum seekers attempting to cross the Melilla border fence. This ruling sparked intense discussion. On one hand, scholars say it sets a negative precedent by allowing push-backs at the border, and giving concessions to states in unlawful summary returns. On the other hand, some say the case-specific particularities of N.D. and N.T v. Spain limits the scope of the judgement’s application to later case-law. Nevertheless, it is essential to recognize that judgement marked a significant departure from earlier case law such as Hirsi Jamaa v. Italy and Sharifi and Others v. Italy and Greece, which set precedent on the strong procedural safeguards for migrants and asylum seekers under Article 4 of protocol no. 4 (prohibition of collective expulsion). Most importantly, the case reflects a crucial development in the Court’s jurisprudence by introducing a two-tier test to assess violations of this provision. 

This shift raises a central question: does the reasoning in N.D. and N.T. v. Spain undermine the prohibition of collective expulsion by conditioning Convention protection on migrants’ conduct and access to legal entry procedures? This Article argues that although at first glance the controversial ruling in N.D. and N.T. v. Spain appears to signal a doctrinal shift away from strong procedural protection under Article 4 of Protocol No. 4, subsequent case-law suggests that its practical impact has been more limited. In particular, the Court has continued to reaffirm the absolute nature of Article 3 and the centrality of the principle of non-refoulement, thereby preventing the two-tier test from evolving into a general justification for pushbacks. 

1. Legal Framework - Article 4 of protocol no. 4

   
   

Article 4 of Protocol No. 4 to the European Convention on Human Rights provides that “The collective expulsion of aliens is prohibited”. The core purpose of this Article is to prevent states from being able to remove non-nationals in groups from state territory without examining their personal circumstances, or enabling them to present arguments against their expulsion. In most cases, Article 4 of protocol no. 4 does not operate in isolation, but frequently intersects with Article 3 of the Convention which provides for the prohibition of torture. In the context of expulsion, arguable claims of Article 3 violations evokes the principle of non-refoulement which provides that no one should be returned to a country where they would face torture, cruel, inhuman, or degrading treatment or punishment and other irreparable harm. Additionally, Article 13 which provides for the right to an effective remedy is typically invoked in conjunction with Articles 3 and 4 of protocol no. 4, requiring states to provide remedies where Convention violations are plausibly alleged. 

The interaction between these articles are central to understanding N.D. and N.T. v. Spain, however this paper will primarily focus on the Court’s ruling of Article 4 of protocol no. 4, and explore the development of its jurisprudence. 

1. The judgement in N.D. and N.T. v. Spain 

Facts and Complaints 

The N.D. and N.T. v. Spain's case concerns two applicants, a Malian national and a national of Cote d’Ivoire who submitted applications with the Court on the alleged violation of Article 3, Article 13 and Article 4 of protocol no. 4 to the convention, against the Kingdom of Spain. Melilla is a Spanish enclave in North Africa which acts as an external Schengen border and is subjected to intense migratory pressure, with a triple fence barrier built by the Spanish authority on their border with Morocco. On 13 August 2014, the two applicants attempted to cross this fence with 600 other migrants, where they were later aided by Spanish Guardia Civil officers to climb down. Once they were on the ground, they were handcuffed, immediately returned to Morocco and handed over to the Moroccan authorities. They complained of their immediate return to Morocco which amounted to collective expulsion, lack of effective remedy, and risk of ill-treatment which they allegedly faced in Morocco. Their allegations of collective expulsion were based on claims that they had no opportunity to be identified, to explain their individual circumstances or to challenge their return. 

Applicability and definition of expulsion 

It is crucial to note that N.D. and N.T v. Spain is the first case in which the Court addresses the applicability of Article 4 protocol no. 4 at a land border, as previous case-law concerned either pushbacks on the high seas (Hirsi Jamaa and Others v. Italy), or following arrival by sea (Sharifi and Others v italy and Greece, Khlaifia and Others v. Italy). After establishing that the case falls under Spain’s jurisdiction, the Grand Chamber examined whether the concept of “expulsion” applied. The Spanish government argued that Article 4 of protocol no. 4 did not apply to this case because the applicants were never legally admitted into the territory, so it is “non-admission” rather than “expulsion”, and the government was only acting in “self-defence” to protect their border. In response, the Court stressed that member states have the right to manage and protect their borders, however this does not justify violation of the Convention or the Protocols. The Court subsequently rejects the formalistic distinction claimed by Spain, and defines expulsion as referring to any forcible removal of an alien from a state’s territory, irrespective of whether the entry was legal. The Court, therefore, concludes that there was an “expulsion” within the meaning of Article 4 of Protocol No. 4 and dismisses the Government’s preliminary objection, declaring the applications admissible 

3. Determining whether the nature of the expulsion is collective 

   
   

After determining that there was indeed an expulsion, the Court examined whether the expulsion is deemed collective, relying on previous case-law. On this end, the Spanish government disputed the collective nature of the expulsion, citing the reason that the case concerned only two individuals. The Court proceeded to define expulsion as collective if individuals are compelled to leave the country as a group without “reasonable and objective examination of the particular case of each individual.” Therefore, the number of individuals affected by a given measure, or their shared characteristics such as origin, nationality, and beliefs are irrelevant to determining whether the nature of the expulsion is collective. The decisive criteria the Court used to determine protocol violation is whether there was a “reasonable and objective examination of the particular case of each individual”(Khlaifia and Others). In addition, Article 4 of protocol no. 4 requires state authorities to ensure that each individual has a genuine and effective possibility of submitting arguments against their expulsion, in order to prevent exposure to risk of treatment that go against the Convention upon their return.

Lastly, the Court refers to the applicant’s own conduct. If procedures for conducting an individual examination are provided by the government, but there was a lack of active cooperation from applicants, the government could not be held responsible. Although the principle of own conduct was alluded to in previous case law, it was only in the ruling of N.D. and N.T. v. Spain, that the Court concretely established a two-tier test to assess the violation of Article 4 protocol no. 4 at land borders. In the newly established two-tier test, the Court will first examine whether the respondent state provided genuine and effective access to means of legal entry. In cases where legal entries are provided but the applicant did not make use of it, the Court will consider secondly, whether there were cogent reasons for the applicants not to do so, and whether the respondent state was responsible.  

The Court then proceeded to apply this two-tier test to determine if the lack of individual examination is attributable to the applicant’s own conduct. First, the Court determined that Spain provided “genuine and effective” legal access, either by applying for a visa or international protection, especially at the Beni Enzar border crossing point, but also at Spain’s diplomatic and consular representation in countries of origin, transit, or Morocco. Furthermore, the Court accepted the Government’s evidence that even before the new asylum office was opened on 1 September, asylum claims could be lodged at Beni Enzar with information, interpretation, and legal aid, rejecting applicants’ claim that it was impossible to apply at Beni Enzar. Although the Court did acknowledge reports about difficulty for sub-Saharan migrants to approach Beni Enzar, they ruled that these reports were non conclusive and did not show Spanish responsibility. Applicant’s late claim that they tried to access Beni Enzar but were chased by Moroccan officers was treated skeptically and concluded as not linked to Spanish responsibility. Therefore, no cogent reasons were attributable to Spain, and bypassing official procedures were attributed to the applicant's own conduct.  Applicant’s representatives were unable to prove that applicants’ removal would not have taken place had they been registered individually. The Court ultimately ruled that applicants placed themselves in jeopardy by participating in the storming of Melilla border fences on 13 August 2014, taking advantage of the group's large numbers and using force, the lack of individual removal decisions were the consequence of their own conduct, and therefore there has been no violation of Article 4 of protocol no. 4.

III. Legal critique  

1. The progression of jurisprudence and the doctrinal shift in N.D. N.T. v. Spain 

   
   

The prohibition of collective expulsion of aliens under Article 4 of protocol no. 4 ECHR has long been understood as imposing a strict procedural obligation on States. In the case of Hirsi Jamaa and Others, which concerned interception of migrants on the high seas and their return to Libya, the applicants had not undergone any identity checks or individual assessment before being transferred onto Italian military vessels and returned to the coast of Libya. The Court held that the absence of any examination of personal circumstance, combined with the real risk of ill-treatment upon return, amounted to a violation of Article 4 of protocol no. 4.

Similarly, in Sharifi and Others v. Italy and Greece, migrants who were intercepted at Adriatic ports were subjected to "automatic returns” to Greece and had been deprived of any effective possibility of seeking asylum. In both cases, the Court emphasised that collective expulsion occurs when individuals are removed without a “reasonable and objected" examination of the particular case of each individual.” The decisive criterion was whether the authorities conducted an individualized assessment and afforded applicants a genuine possibility to challenge their return. In these cases, their entry status or manner of arrival did not diminish state obligation, rendering the protection under Article 4 of protocol no. 4 in earlier jurisprudence nearly absolute in nature.

However, a more nuanced approach emerged in the more recent case of Khlaifia and Others v. Italy. The applicants had arrived in Italy across the Mediterranean and had been returned to Tunisia by the Italian authorities after simple and standardised identification procedures. Although no full individual interviews were conducted and a large group of Tunisians were expelled at the same time, the Court found no violation of Article 4 of protocol no. 4. The Court ruled, for the first time, that Article 4 of protocol no. 4 does not guarantee the right to an individual interview in all circumstances. Therefore, to determine whether there had been a sufficiently individualized examination, it was necessary to also regard the "general context” at the time which refers to the context of the migration crisis justifying collective expulsion. This development in jurisprudence, shows a progressive retreat from the stricter approach adopted in Hirsi and Sharifi, and greater concessions made to the state. However, it is important to notice that in this case there was no alleged refoulement risk upon return, unlike cases mentioned earlier. Therefore, analysing from another angle the Court’s ruling might not have been retreating from absolute protection, but afforded less protection because of the absence of substantial Article 3 violations, and merely examining procedural conditions. 

This doctrinal shift became more explicit and concretely manifested in N.D. and N.T v. Spain where a two-tier criteria to assess Article 4 of protocol no. 4 violation was established. The two-tier test firstly questions whether the State provided an effective opportunity for the applicants to submit arguments against their expulsion, including providing legal means of entry, and secondly whether applicants had cogent reasons to not engage with these provided procedures or pathways. In this case, the Grand Chamber ruled that the lack of individual assessment, which has been a decisive criteria in determining the violation of A4P4, in Hirsi and Sharifi, does not automatically equate to a violation of A4P4, if it could be attributable to applicant’s own conduct. Therefore, the obligation of the state to provide an individual examination is no longer absolute in practice but becomes conditional on migrant behavior, shifting a disproportionate amount of burden onto individuals. This not only provides a mechanism through which the states may be exempted from conducting individual examinations before individual expulsion, but also shifts the burden of proof from the state’s procedural failure to the migrant’s inability to comply with available procedures. Moreover, even if practical obstacles existed, they become legally irrelevant unless attributable to the state, narrowing the scope of state’s responsibility in complex border settings involving a third-country, thereby limiting the protective reach of Article 4 of Protocol.  

2. The Court’s focus on Formality over reality 

   
   

This conditionality of A4P4 on applicants’ own conduct established by N.D. and N.T. becomes particularly precarious in situations where these legal pathways such as Beni Enzar border crossing point seem to be accessible on papers but hard to be reached in practice. While the Court concluded that Spain had provided "genuine and effective” legal access, several third-party interveners indicated that the provided pathways are either impossible to access or that sub-Saharan migrants faced disproportionate amounts of racial profiling, police obstruction, and physical restrictions to reach border points. 

UNHCR stated that prior to November 2014 it had not been possible to request asylum at the Beni Enzar border crossing point and that no effective identification system existed for persons in need of international protection. They further reported that migrants from sub-Saharan Africa were systematically prevented by Moroccan authorities from reaching authorised border points. These claims were supported by the United Nations Special Rapporteur who reported that sub-Saharan refugees were subjected to serious violence and sexual abuse on their route to Ceuta and Melilla. CEAR pointed out that Spanish Guardia Civil operations protocol allowed collective expulsions to be carried out without a requirement to afford any safeguards at the time of expulsion. Additionally they criticised that the legal framework in Morocco regarding international protection was inadequate, citing the case where most migrants trying to reach the UNHCR office in Rabat were arrested and detained, which prevented them from applying for protection. Most importantly, the UNHCR observed that the length of the asylum procedure and the conditions in the detention centres at Melilla and Ceuta enclaves deterred even aliens acting in good faith from seeking international protection. 

Although these submissions collectively suggested that legal pathways existed in theory but were practically inaccessible, the Court held that the reports were not sufficiently conclusive and that these obstacles were not attributable to Spain. This reasoning reveals the structural tension of N.D. and N.T.’s ruling. By focusing on formal availability rather than practical accessibility, the Court effectively allowed Spain to escape responsibility for conditions that rendered their legal pathways largely illusory, especially for sub-Saharan African refugees who are subjected to racial discrimination. While it is true that Spain cannot control Moroccan authorities, migrants bear the burden of navigating structural barriers which are beyond their control. The consequence is Article 4 of Protocol No. 4 risks becoming contingent on the capacity of migrants to access procedures that are structurally inaccessible, providing no remedies when these obstacles are not attributable to the contract state, and undermines the absolute protection individuals should receive. 

3. Limits to this doctrinal shift and the continued protection of Article 3

   
   

However, there are also exceptions to the two-tier examination criteria established in N.D. and N.T. This criteria can only be applied in cases where the alleged violation of Article 3 upon the aliens’ return, or refoulement risk, has not been established. In expulsion cases where arguable claims are present, the absolute protection of Article 3 makes the criteria established by N.D. and N.T. irrelevant. In such cases, individuals are afforded protection regardless of entry circumstances, choices, or personal conduct. Paragraph 232 of N.D. and N.T. confirms this limit. The Court explicitly reaffirmed that states’ border control procedures and measures must comply with Convention guarantees, “However, it should be specified that this finding does not call into question the broad consensus within the international community regarding the obligation and necessity for the Contracting States to protect their borders in a manner which complies with the Convention guarantees, and in particular with the obligation of non‑refoulement.” The two-tier framework therefore cannot override substantive protection under Article3. 

Therefore, despite the controversial ruling in N.D. and N.T, subsequent case-law proves that the principle of non-refoulement has not lost its procedural importance.  

In Asady and Others v. Slovakia applicants were found in a truck near the Ukrainian border by Slovak authorities in 2014, and were subsequently returned to Ukraine. The Court found no violation of Article 4 of protocol no. 4 and dismissed the claims as ill-founded, highlighting the fact that applicants were able to but did not raise allegations under Article 3. Instead, complaints were communicated only under Article 4 of protocol no. 4, allowing the Court to apply the two-tier test. Subsequently, the Court found no violation of Article 4 of Protocol no. 4 as applicants were provided with sufficient individual examination through short interview and standardized questions, along with their lack of engagement with legal routes provided. Critiques point to the significant similarities of this case and N.D. and N.T. where there was the absence of an examination of Article 3 claims by the Chamber, which allows the Court to rule only on procedures, and not protection from harm. It should also be noted that the Slovakian domestic expulsion decisions referred to an examination of Article 3 risks but in reality there was no record of risk-related statements made by the applicants. 

On the contrary, in two other cases, where arguable claims of refoulement risk were present, the Court applied heightened scrutiny and indeed found a violation of A4P4. In Moustahi V. France, two children from Mayotte were returned to Comoros together with fifteen other individuals who arrived on the same boat. The Court ruled that the unaccompanied status of the minor applicants deprived them of a real opportunity to effectively raise arguments against their expulsion, and the conditions of return indicated a lack of humanity towards the children. In this case the Court does not examine the circumstance of entry but takes into consideration the specific circumstances of the case based on the absence of sufficiently individualized expulsion procedures.  In M.K. and Others V. Poland applicants were Russian nationals who attempted to make asylum applications at the Polish-Belarusian border on multiple occasions throughout 2017. The Court recognized the systematic border refusal which showed that applicants were refused access and returned to Belarus despite their claims of Article 3 violations and lack of effective guarantees that would protect them from ill-treatment. Evidence submitted by the applicants and reports from human rights organizations reveals that these submitted claims regarding their risk of refoulement were not properly assessed by the Polish authorities. This case remarkably illustrates that N.D. and N.T. has, in fact, not become a blanket justification for state pushbacks at borders. When true obstacles to access border procedures and refoulement risk are established, individuals are still afforded substantive protection under Article 4 of protocol no. 4 against collective expulsion. 

Ultimately, these cases demonstrate that even where legal means of entry formally exist, the presence of an arguable risk of ill-treatment, shifts the burden back to the State, to ensure that such procedural arrangements are genuinely accessible and effective in practice. Although N.D. and N.T. introduced a conditional framework based on applicants’ conduct, the Court continues to apply a case-specific analysis, examining whether the absence of individual assessment is truly attributable to the applicants’ behaviour or instead reflects a failure by the State to secure substantive protection under Article4 of Protocol No. 4 in light of Article 3 guarantees.

Conclusion

In sum, the Grand Chamber’s decision in N.D. and N.T. v. Spain undeniably marked a doctrinal development in the interpretation of Article 4 of protocol no. 4. By introducing the two-tier framework, and heightening emphasis on the relevance of applicants’ own conduct, the Court’s interpretation of the law effectively moved away from the near absolute protection afforded in prior case-laws. Nevertheless, it can be seen from the development of jurisprudence that this shift is not sudden but a gradual process. Only in this judgement did the Court concretely manifest the doctrinal shift in the establishment of the two-tier assessment criteria. In doing so, the Court introduced a conditional element which afforded more concessions to the state, and shifted more burden onto the applicant’s ability to access legal entry procedures, which can be precarious in situations where obstacles to accessibility are contingent on a third-country’s authority. However, subsequent case law demonstrates that this shift does not reflect an absolute nor transformative change in the Convention system as a whole. Where arguable claims of refoulement risk arise, the Court continues to apply heightened scrutiny grounded in the absolute nature of Article 3. Thus, N.D. and N.T. does not dismantle the prohibition of collective expulsion nor provide a blanket justification for pushbacks, but reflects the Court’s shift towards a more contextual and case-specific interpretation. Ultimately, the enduring centrality of non-refoulement principles in subsequent cases ensures that, even amid increasing migration pressures, the Convention continues to impose meaningful limits on State power at Europe’s borders.

Bibliography

International Conventions 

Council of Europe. Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). 4 November 1950. ETS No. 5. https://www.echr.coe.int/documents/d/echr/convention_ENG.

Council of Europe. Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Securing Certain Rights and Freedoms Other Than Those Already Included in the Convention and in the First Protocol Thereto. 16 September 1963. ETS No. 46. https://rm.coe.int/168006b65c.

European Court of Human Rights. Guide on Article4 of Protocol No. 4 to the European Convention on Human Rights: Prohibition of Collective Expulsion of Aliens. Strasbourg: Council of Europe, 2025. https://ks.echr.coe.int/documents/d/echr-ks/guide_art_4_eng.

Office of the United Nations High Commissioner for Human Rights (OHCHR). The Principle of Non-Refoulement under International Human Rights Law. September 2018. https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf.

Jurisprudence 

Asady and Others v. Slovakia. Application no. 24917/15. judgements of 24 March 2020.

Hirsi Jamaa and Others v. Italy. Application no. 27765/09. Grand Chamber judgements of 23 February 2012.

Khlaifia and Others v. Italy. Application no. 16483/12. Grand Chamber judgements of 15 December 2016.

M.K. and Others v. Poland. Application nos. 40503/17, 42902/17, and 43643/17. judgements of 23 July 2020.

Moustahi v. France. Application no. 9347/14. judgements of 25 June 2020.

N.D. and N.T. v. Spain. Application nos. 8675/15 and 8697/15. Grand Chamber judgements of 13 February 2020.

Sharifi and Others v. Italy and Greece. Application no. 16643/09. judgements of 21 October 2014.

Secondary sources 

March, Clara Bosch. “Exploring the (Absolute?) Nature and Scope of Application of Article4 of Protocol No 4 ECHR: ND and NT V Spain as a Case-Study.” The European Convention on Human Rights Law Review 6, no. 4 (November 3, 2025): 486–530. https://doi.org/10.1163/26663236-bja10145.

European Council on Refugees and Exiles (ECRE). Across Borders: The Impact of N.D. and N.T. v Spain in Europe. Legal Note no. 10. Brussels: ECRE, June 2021. https://ecre.org/wp-content/uploads/2021/07/Legal-Note-10.pdf.

European Court of Human Rights. Guide on Article4 of Protocol No. 4 to the European Convention on Human Rights: Prohibition of Collective Expulsion of Aliens. Strasbourg: Council of Europe, 2025. https://ks.echr.coe.int/documents/d/echr-ks/guide_art_4_eng.