Last Updated on April 5, 2022 by LawEuro
Information Note on the Court’s case-law 261
April 2022
A.A. and Others v. North Macedonia – 55798/16, 55808/16, 55817/16 et al.
Judgment 5.4.2022 [Section II]
Article 4 of Protocol No. 4
Prohibition of collective expulsion of aliens
Lack of individual removal decisions for migrants, arriving in large groups and circumventing genuine and effective legal entry procedures without cogent reasons: no violation
Facts – The applicants, Afghan Iraqi and Syrian nationals, left their country of origin and arrived in Greece. In March 2016, the applicants crossed the border and entered Macedonian territory, by joining large groups of refugees and wading across a river in what become known as the “March of Hope”. Shortly afterwards, they were intercepted by soldiers, who allegedly threatened or used violence and ordered them to return to Greece. They re-crossed the border into Greece on foot.
Law – Article 4 of Protocol No. 4:
The migrants had been removed from the respondent State without being subjected to any identification procedure or examination of their personal situation by the authorities of North Macedonia. That should lead to the conclusion that their expulsion had been of a collective nature, unless the lack of examination of their situation could be attributed to their own conduct. The Court therefore proceeded to examine whether the lack of individual removal decisions could be justified by the applicants’ own conduct.
The applicants had been part of two large groups of migrants, who had crossed the border of the respondent State in an unauthorised manner. However, there was no indication that the applicants, or other people in the group, had used any force or had resisted the officers. Therefore, even though the present case could be compared to the circumstances in N.D. and N.T. v. Spain, in the present case there had been no use of force.
The Court nevertheless examined whether, by crossing the border irregularly, the applicants had circumvented an effective procedure for legal entry.
Macedonian law had afforded the applicants a possibility of entering the territory of the respondent State at the border points, if they had fulfilled the entry criteria or, failing that, if they had sought asylum or at least stated that they had intended to apply for asylum. That entailed an examination of the individual circumstances of each claimant, and a decision on expulsion, if the circumstances warranted it, which decision could have been appealed. The respondent State had provided specific information as to how many certificates had been issued of an expressed intention to apply for asylum, and how many applications for asylum had been submitted, as well as specific information about the closest border crossing, the infrastructure available there, various organisations present on the spot, and information showing that intentions to apply for asylum had actually been expressed there:
Nearly 500,000 certificates of an expressed intention to apply for asylum had been issued between 19 June 2015 and 8 March 2016, of which a large majority had been issued to the same nationalities as the applicants in the present case;
The nearest border crossing to the camp, the Bogorodica crossing, had also been one of the two busiest border crossings, at which more than 300,000 certificates had been issued by the end of December 2015;
While there had not been specific information about the availability of interpreters, it was clear that some interpretation had been available.
There had therefore been not only a legal obligation to accept asylum applications and expressed intentions to apply for asylum at that border crossing point, but also an actual possibility of doing so.
The applicants had submitted that it had not been possible for them to seek asylum at the Bogorodica border crossing at the time of their summary deportation, that is on or around 14 and 15 March 2016, as the relevant data had confirmed that no certificates of an expressed intention to apply for asylum had been issued at that time. The Court noted that after 8 March 2016, transit had effectively no longer been possible because of the European Union’s different approach to the issue of the ever-increasing number of migrants and the consequent reaction of other countries along the Balkan route. However, there was nothing to indicate that it had no longer been possible to claim asylum at the border crossing.
There was nothing to suggest that potential asylum-seekers had in any way been prevented from approaching the legitimate border crossing points and lodging an asylum claim or that the applicants had attempted to claim asylum at the border crossing and been returned. The applicants in the present case had not even alleged that they had ever tried to enter Macedonian territory by legal means. Hence, the Court was not persuaded that they had had the required cogent reasons for not using the Bogorodica or any other border crossing point at the material time, with a view to submitting reasons against their expulsion in a proper and lawful manner. That indicated that they had not been interested in applying for asylum in the respondent State, but had rather been interested only in transiting through it, which had no longer been possible, and therefore had opted for illegally crossing into it.
For those reasons, in spite of some shortcomings in the asylum procedure and reported pushbacks, the State had not failed to provide genuine and effective access to procedures for legal entry into North Macedonia, in particular by putting into place international protection at the border crossing points, especially with a view to claims for protection under Article 3, or that the applicants had had cogent reasons, based on objective facts for which the respondent State had been responsible, not to make use of those procedures.
It had in fact been the applicants who had placed themselves in jeopardy by participating in the illegal entry into Macedonian territory, taking advantage of the group’s large numbers. The lack of individual removal decisions had been a consequence of their own conduct.
Conclusion: no violation (unanimously).
The Court also held, unanimously, that there had been no violation of Article 13 taken in conjunction with Article 4 of Protocol No. 4 concerning the availability of an effective remedy with suspensive effect by which to challenge the summary deportation. Macedonian law had provided a possibility of appeal against removal orders. However, by deliberately attempting to enter the territory as part of a large group and at an unauthorised location, the applicants had placed themselves in an unlawful situation and had thus chosen not to use the legal procedures which had existed.
(See also N.D. and N.T. v. Spain [GC], 8675/15 and 8697/15, 13 February 2020, Legal Summary; Shahzad v. Hungary, 12625/17, 8 July 2021, Legal Summary; M.H. and Others v. Croatia, 15670/18 and 43115/18, 18 November 2021, Legal Summary)
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