Law at the Border or New Borders of Law? The Role of the European Court of Human Rights in the Context of European Border Policy

Abstract

Through an extensive interpretation of the collective expulsion prohibition, the European Court of Human Rights (ECtHR) has for decades compensated for the lack of procedural rights in the European Convention on Human Rights in the expulsion and rejection of migrants at a border. Influenced by internal pressure due to diverging views of its judges and external pressure from member states, the ECtHR pursued a more regressive approach after 2016, culminating in 2020 in its N.D. and N.T. v. Spain judgment on Spain’s policy of ‹hot returns›. This paper attempts to contextualise this shift and its consequences by, inter alia, analysing dissenting votes, judgments, and state practice. In the longer term, this line of jurisprudence could serve as a basis for justifying proposed European border procedures and have effects beyond the ECHR member state context.