CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 13 février 2020

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text-indent:0pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s13907D4E { margin-top:18pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .sAB0FFF87 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }   GRAND CHAMBER CASE OF N.D. AND N.T. v . SPAIN (Applications nos. 8675/15 and 8697/15)       JUDGMENT   Art 4 P4 • Prohibition of collective expulsion of aliens • Immediate and forcible return of aliens from a land border, following an attempt by a large number of migrants to cross it in an unauthorised manner and en masse • No distinction between non-admission and expulsion of aliens for the purposes of applicability of Art   4 P4 • Availability of genuine and effective access to means of legal entry allowing to claim protection under Art   3 • Absence of cogent reasons for failure to use official entry procedures, which were based on objective facts for which the respondent State was responsible • Lack of individual removal decisions being a consequence of the applicants’ own conduct   STRASBOURG 13 February 2020         This judgment is final but it may be subject to editorial revision. Table of contents PROCEDURE THE FACTS I.     THE BACKGROUND TO THE CASE II.     THE CIRCUMSTANCES OF THE CASE A.     Origins of the case B.     The events of 13 August 2014 C.     The applicants’ subsequent entry into Spain RELEVANT LEGAL FRAMEWORK AND PRACTICE I.     DOMESTIC LAW AND PRACTICE A.     Institutional Law no. 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration (“the LOEX”) B.     Law no. 12/2009 of 30 October 2009 on asylum and subsidiary protection C.     Royal Decree no. 203/1995 of 10 February 1995 (implementing regulations for the Law on asylum) D.     Royal Decree no. 557/2011 of 20 April 2011 (implementing regulations for the LOEX) E.     The Guardia Civil border control operations protocol of 26   February 2014 (as applicable at the relevant time), which introduced the term “operational border” F.     Circular letter to all Spanish ambassadors G.     The Spanish Ombudsperson’s Office II.     EUROPEAN UNION LAW A.     Treaty on European Union (as amended by the Treaty of Lisbon, which entered into force on 1 December 2009) B.     Charter of Fundamental Rights of the European Union C.     Treaty on the Functioning of the European Union (as amended by the Treaty of Lisbon, which entered into force on 1 December 2009) D.     The Agreement on the accession of the Kingdom of Spain to the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen on 19 June 1990 E.     Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) F.     Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (codification) G.     Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third ‑ country nationals (“the Return Directive”) 1.     The text of the Directive 2.     Relevant case-law of the CJEU in relation to this Directive H.     Council Directive   2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [subsequent version: Directive 2013/32/EU of 26 June 2013] I.     Directive 2011/95/EU of the European Parliament and of the Council of 13   December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) J.     European Parliament resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration (2015/2095(INI)) III.     COUNCIL OF EUROPE DOCUMENTS A.     Twenty Guidelines of the Committee of Ministers of the Council of Europe on Forced Return, adopted on 4 May 2005 at the 925th meeting of the Ministers’ Deputies B.     Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) C.     The 2015 annual activity report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe (“the Commissioner for Human Rights”), dated 14 March 2016 D.     Report dated 3 September 2018 of the fact-finding mission by Ambassador Tomáš Boček, Special Representative of the Secretary General on migration and refugees, to Spain, 18 ‑ 24   March 2018 (SG/Inf(2018)25) E.     Resolution 2299 (2019) of the Parliamentary Assembly of the Council of Europe, adopted on 28 June 2019: Pushback policies and practice in Council of Europe member States IV.     OTHER INTERNATIONAL MATERIALS A.     Charter of the United   Nations (UN Charter), signed on 26   June   1945 in San Francisco B.     Vienna Convention on the Law of Treaties of 23 May 1969 C.     Geneva Convention of 28 July 1951 relating to the Status of Refugees D.     Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (UNCAT) E.     Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14 December 1967 (Resolution 2312 (XXII)) F.     International Law Commission’s Draft Articles on the Expulsion of Aliens G.     Conclusions on International Protection adopted by the Executive Committee of the UNHCR Programme 1975 – 2017 H.     Views adopted by the Committee on the Rights of the Child on 12   February 2019 under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning communication No. 4/2016 THE LAW I.     PRELIMINARY ISSUES A.     Continued examination of the case – Article 37 § 1 (a) B.     Assessment of the evidence and establishment of the facts by the Court II.     THE ISSUE OF JURISDICTION UNDER ARTICLE 1 OF THE CONVENTION A.     The Chamber judgment B.     The parties’ submissions C.     The third parties’ observations D.     The Court’s assessment 1.     General principles 2.     Application to the present case III.     THE GOVERNMENT’S OTHER PRELIMINARY OBJECTIONS A.     The applicants’ alleged loss of victim status B.     Exhaustion of domestic remedies 1.     The Government 2.     The applicants 3.     The Court’s assessment IV.     ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION A.     The Chamber judgment B.     The parties’ submissions before the Grand Chamber 1.     The Government 2.     The applicants C.     The third parties’ observations 1.     The Commissioner for Human Rights of the Council of Europe 2.     The third-party Governments (a)     The Belgian Government (b)     The French Government (c)     The Italian Government 3.     The other third-party interveners (a)     UNHCR (b)     OHCHR (c)     The CEAR (d)     The AIRE Centre, Amnesty International, the European Council on Refugees and Exiles (ECRE), the Dutch Council for Refugees and the International Commission of Jurists, acting jointly D.     The Court’s assessment 1.     Applicability (a)     General principles (b)     Application to the present case 2.     Merits (a)     General principles (b)     Application to the present case (i)     The fact that there were only two applicants (ii)     The applicants’ conduct (α)     The parties’ submissions (ß)     The Court’s assessment V.     ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4 OF PROTOCOL No.   4 A.     Admissibility B.     Merits 1.     The Chamber judgment 2.     The Court’s assessment CONCURRING OPINION OF JUDGE PEJCHAL PARTLY DISSENTING OPINION OF JUDGE KOSKELO In the case of N.D. and N.T. v. Spain, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Linos-Alexandre Sicilianos, President,   Angelika Nußberger,   Robert Spano,   Vincent A. De Gaetano,   Ganna Yudkivska,   André Potocki,   Aleš Pejchal,   Faris Vehabović,   Mārtiņš Mits,   Armen Harutyunyan,   Gabriele Kucsko-Stadlmayer,   Pauliine Koskelo,   Marko Bošnjak,   Tim Eicke,   Lәtif Hüseynov,   Lado Chanturia,   María Elósegui, judges,   and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 26 September 2018, 3 July and 5   December 2019, Delivers the following judgment, which was adopted on the last mentioned date: PROCEDURE 1.     The case originated in two applications (nos. 8675/15 and 8697/15) against the Kingdom of Spain. The applications were lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Malian national, N.D., the applicant in application no. 8675/15 (“the first applicant”), and a national of Côte d’Ivoire, N.T., the applicant in application no. 8697/15 (“the second applicant”), on 12 February 2015. 2.     The applicants were represented by Mr C. Gericke and Mr G. Boye, lawyers practising in Hamburg and Madrid respectively. The Spanish Government (“the Government”) were represented by their Agent, Mr R.-A. León Cavero, State Counsel and head of the Human RigM.A. v. lihts Legal Department, Ministry of Justice. 3.     In their applications the applicants alleged, in particular, a violation of Article 3 and Article 13 of the Convention, of those two Articles taken together, of Article 4 of Protocol No. 4 to the Convention, and, lastly, of Article 13 taken together with Article 4 of Protocol No. 4. They complained of their immediate return to Morocco, which amounted in their view to a collective expulsion, of the lack of an effective remedy in that regard and of the risk of ill-treatment which they allegedly faced in Morocco. They submitted that they had had no opportunity to be identified, to explain their individual circumstances or to challenge their return by means of a remedy with suspensive effect. 4.     The applications were allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). By a decision of 7 July 2015 the Government were given notice of the complaints under Article 4 of Protocol No. 4 and Article 13 of the Convention, and under both those Articles taken together. The Court decided to join the applications and found the remaining complaints inadmissible (Rule 54 § 3). 5.     Mr Nils Muižnieks, Commissioner for Human Rights of the Council of Europe (“the Commissioner for Human Rights”) exercised his right to participate in the proceedings and submitted written comments (Article   36 §   3 of the Convention and Rule 44 § 2). 6.     The Court also received written observations from the Office of the United Nations High Commissioner for Refugees (UNHCR), the United Nations High Commissioner for Human Rights (OHCHR), the Spanish Commission for Assistance to Refugees (CEAR) and, acting collectively, the Centre for Advice on Individual Rights in Europe (the AIRE Centre), Amnesty International, the European Council on Refugees and Exiles (ECRE) and the International Commission of Jurists, all of which had been given leave by the President to intervene under Article 36 § 2 of the Convention and Rule 44 § 3. 7.     The parties replied to those observations. They also submitted observations following the delivery on 15 December 2016 of the Court’s judgment in Khlaifia and Others v. Italy [GC] (no. 16483/12). 8.     In a judgment of 3 October 2017 a Chamber of the Third Section of the Court unanimously declared the remaining parts of the applications admissible and held that there had been a violation of Article 4 of Protocol No. 4 and of Article 13 of the Convention read in conjunction with Article   4 of Protocol No. 4. The Chamber was composed of Branko Lubarda, President, Luis López Guerra, Helen Keller, Dmitry Dedov, Pere Pastor Vilanova, Alena Poláčková, Georgios A.   Serghides, judges, and Fatoş Aracı, Deputy Section Registrar. Judge Dedov expressed a partly dissenting opinion concerning the award of just satisfaction. 9.     On 14 December 2017 the Government requested the referral of the case to the Grand Chamber under Article 43 of the Convention and Rule 73. On 29 January 2018 the panel of the Grand Chamber granted that request. 10.     The composition of the Grand Chamber was determined in accordance with Article 26 §§ 4 and 5 of the Convention and Rule 24. 11.     The applicants and the Government each filed written observations on the admissibility and merits of the case. 12 .     The Belgian, French and Italian Governments, which had been given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3) submitted third-party observations. Observations were also received from the Commissioner of Human Rights of the Council of Europe and from UNHCR, the CEAR and, acting collectively, the AIRE Centre, Amnesty International, ECRE and the International Commission of Jurists, joined by the Dutch Council for Refugees. The OHCHR’s written observations in the Chamber proceedings were also included in the file. The parties replied to these observations in the course of their oral submissions at the hearing (Rule 44 § 6). 13.     Ms Dunja Mijatović, Commissioner for Human Rights since 1   April 2018, spoke at the hearing, in accordance with Article 36 § 3 of the Convention. UNHCR, which had been given leave by the President to participate in the oral proceedings before the Grand Chamber in accordance with Article 36 § 2, also took part in the hearing. 14.     A hearing took place in public in the Human Rights Building, Strasbourg, on 26 September 2018. There appeared before the Court:   –     for the applicants Mr C. Gericke , Mr G. Boye ,   Counsels, Ms I. Elbal , Ms H. Hakiki , Mr W. Kaleck Ms R. Moreno ,   Advisers; –     for the Government Mr R.-A. León Cavero ,   Agent, Mr F. de A., Sanz Gandasegui , Mr A. Brezmes martínez de Villareal,   Co-Agents, Mr M. Montobbio , Permanent Representative of Spain to the Council of Europe Mr F. Coria Rico , Mr J. Rueda Jiménez , Mr L. Tarín Martín , Mr J. Valterra de Simón,   Advisers ;   –     for the Commissioner of Human Rights of the Council of Europe Ms D. Mijatović ,   Commissioner , Ms F. Kempf , Ms A. Weber,   Advisers ;   –     for the Office of the United Nations High Commissioner for Refugees Ms G. O’Hara ,   Director, Division of International Protection, Ms M. García , Mr R. Wanigasekara ,   Advisers .   The Court heard addresses by Mr León Cavero, Mr Gericke, Mr Boye, Ms Mijatović and Ms O’Hara, and the replies by Mr León Cavero, Mr   Gericke, Mr Boye and Ms O’Hara to questions put by the judges. THE FACTS I.     THE BACKGROUND TO THE CASE 15.     The autonomous city of Melilla is a Spanish enclave of 12 sq. km located on the north coast of Africa and surrounded by Moroccan territory. It lies on the migration route from North and sub-Saharan Africa which is also used by Syrian migrants. The border between Melilla and Morocco is an external border of the Schengen Area and thus provides access to the European Union. As a result, it is subject to particularly intense migratory pressure. 16.     The Spanish authorities have built a barrier along the 13 km border separating Melilla from Morocco, which since 2014 has comprised three parallel fences. The aim is to prevent irregular migrants from accessing Spanish territory. The barrier consists of a six-metre-high, slightly concave, fence (“the outer fence”); a three-dimensional network of cables followed by a second, three-metre-high fence; and, on the opposite side of a patrol road, another six-metre-high fence (“the inner fence”). Gates have been built into the fences at regular intervals to provide access between them. A sophisticated CCTV system (including infrared cameras), combined with movement sensors, has been installed and most of the fences are also equipped with anti-climbing grids. 17.     There are four land border crossing points between Morocco and Spain, located along the triple fence. Between these crossings, on the Spanish side, the Guardia Civil has the task of patrolling the land border and the coast to prevent illegal entry. Mass attempts to breach the border fences are organised on a regular basis. Groups generally comprising several hundred aliens, many of them from sub-Saharan Africa, attempt to enter Spanish territory by storming the fences described above. They frequently operate at night in order to produce a surprise effect and increase their chances of success. 18.     Those migrants who do not manage to evade the Guardia Civil , and whom the officials succeed in persuading to come down of their own accord using ladders, are taken back immediately to Morocco and handed over to the Moroccan authorities, unless they are in need of medical treatment (see paragraph 58 below). 19.     At the time of the events this modus operandi was provided for only by the Guardia Civil “Border control operations protocol” of 26 February 2014 and by service order no. 6/2014 of 11 April 2014 (see paragraph 37 below). 20 .     On 1 April 2015 the tenth additional provision of Institutional Law   no. 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration (“the LOEX”) came into force. The additional provision was inserted by means of Institutional Law no. 4/2015 of 30 March 2015 laying down special rules for the interception and removal of migrants in Ceuta and Melilla (see paragraphs 32-33 below). II.     THE CIRCUMSTANCES OF THE CASE A.     Origins of the case 21.     The first applicant was born in 1986 and the second applicant in 1985. 22 .     The first applicant left his village in Mali on account of the 2012 armed conflict. After spending a few months in a refugee camp in Mauritania and then in Algeria, he arrived in Morocco in March 2013 and reportedly lived in the “informal” migrants’ camp on Mount Gurugu, close to the Melilla border. He stated that there had been several raids by the Moroccan security forces and that he had broken his leg during the summer of 2014 while fleeing from them. 23 .     The second applicant arrived in Morocco in late 2012 after travelling through Mali. He also stayed in the Mount Gurugu migrants’ camp. B.     The events of 13 August 2014 24 .     On 13 August 2014 two attempted crossings took place, organised by smuggling networks: one at 4.42 a.m. involving 600 people, and another at 6.25 a.m. involving 30 people. The applicants stated that they had taken part in the first of these. They had left the Mount Gurugu camp that day and tried to enter Spain together with their group, scaling the outer fence together with other migrants. According to the Government, the Moroccan police prevented around 500 migrants from scaling the outer fence, but around a hundred migrants nevertheless succeeded. Approximately seventy ‑ five migrants managed to reach the top of the inner fence, but only a few came down the other side and landed on Spanish soil, where they were met by the members of the Guardia Civil . The others remained sitting on top of the inner fence. The Guardia Civil officials helped them to climb down with the aid of ladders, before escorting them back to Moroccan territory on the other side of the border through the gates between the fences. 25 .     The first applicant stated that he had managed to reach the top of the inner fence and had remained there until the afternoon. The second applicant said that he had been struck by a stone while he was climbing the outer fence and had fallen, but had subsequently managed to get to the top of the inner fence, where he had remained for eight hours. At around 3 p.m. and 2 p.m. respectively the first and second applicants reportedly climbed down from the fence with the help of Spanish law-enforcement officials who provided them with ladders. As soon as they reached the ground they were allegedly apprehended by Guardia Civil officials who handcuffed them, took them back to Morocco and handed them over to the Moroccan authorities . The applicants alleged that they had not undergone any identification procedure and had had no opportunity to explain their personal circumstances or to be assisted by lawyers or interpreters. 26.     The applicants were then reportedly transferred to Nador police station, where they requested medical assistance. Their request was refused. They were allegedly taken subsequently, together with other migrants who had been returned in similar circumstances, to Fez, some 300 km from Nador, where they were left to fend for themselves. The applicants stated that between 75 and 80 migrants from sub-Saharan Africa had been returned to Morocco on 13   August 2014. 27 .     Journalists and other witnesses were at the scene of the attempt to storm the border fences and the subsequent events. They provided video-footage which the applicants submitted to the Court. C.     The applicants’ subsequent entry into Spain 28 .     On 2 December and 23 October 2014 respectively, in the context of further attempts to storm the fences, the first and second applicants succeeded in climbing over the fences and entering Melilla. Two sets of proceedings were instituted against them. The applicants were subsequently issued with expulsion orders. 29.     An order for the first applicant’s expulsion was issued on 26 January 2015. He was accommodated in the temporary detention centre for aliens (CETI) in Melilla before being transferred to the Barcelona CETI in March   2015. He lodged an administrative appeal ( recurso de alzada ) against the expulsion order. On 17 March 2015, while this appeal was still pending, the first applicant lodged an application for international protection. His application was rejected on 23   March 2015 on the grounds that it was unfounded and that the applicant was not at risk, as the UNHCR office had issued an opinion on 20   March 2015 finding that the first applicant’s circumstances did not justify granting him international protection. A request for review lodged by the applicant was rejected by a decision of the Interior Ministry’s Asylum and Refugees Office on 26 March 2015, following a further negative UNHCR opinion issued on the same day. The stay of the administrative expulsion proceedings was therefore lifted and the first applicant was sent back to Mali by airplane on 31 March 2015. The previous day an appeal against the decision refusing international protection had been lodged with the administrative courts, but was withdrawn by the applicant’s representative on 15 September 2015. The first applicant’s administrative appeal against the order for his expulsion was declared inadmissible by a decision of 19 May 2015. As no appeal against that decision was lodged with the administrative courts, the order became final on 26   September 2015. According to the first applicant’s account, he has been living in very precarious circumstances since his return to Mali and has no fixed address. 30.     An order for the second applicant’s expulsion was issued on 7   November 2014 and was upheld on 23 February 2015 following the dismissal of his administrative appeal ( de alzada ). He was accommodated in the Melilla CETI and in November 2014 was transferred to the Spanish mainland. The order for his expulsion became final on 11 July 2015. The second applicant did not apply for international protection. On expiry of the maximum period of 60 days’ immigration detention he was released. Since then he has apparently been staying unlawfully in Spain, probably in Andalusia and without any fixed address, according to the statements made by his lawyers at the hearing before the Court. 31.     Both applicants were represented by lawyers during these proceedings. RELEVANT LEGAL FRAMEWORK AND PRACTICE I.     DOMESTIC LAW AND PRACTICE A.     Institutional Law no. 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration (“the LOEX”) 32 .     The relevant provisions of the LOEX as in force at the material time read as follows: Section 25 – Conditions for entering Spain “1.     Aliens seeking to enter Spain must do so at the authorised border crossing points. They must be in possession of a passport or travel document that provides proof of their identity and is accepted for that purpose under the international conventions to which Spain is a party, and must not be subject to an explicit entry ban. They must also present the documents required by the implementing regulations [of the present Law] explaining the purpose and conditions of their stay, and must provide proof that they have sufficient funds for the expected duration of their stay in Spain or have the means of obtaining them lawfully. ... 3.     The preceding paragraphs shall not apply to aliens claiming the right of asylum on entering Spain. Such claims shall be dealt with under the specific legislation on asylum.” Section 27 – Issuance of visas “1.     Visas shall be requested and issued in the Spanish diplomatic missions and consulates, save in the exceptional circumstances laid down in the regulations or in those cases where the Spanish State, in accordance with the Community legislation in this sphere, has entered into a representation agreement with another European Union Member State concerning transit or residence visas. ...” Section 58 – Effects of expulsion and removal ( devolución ) “... 3.     The creation of an expulsion file is not required for the removal of aliens who ... (b)     attempt to enter the country illegally; ...” Section 65 – Possibility of appeal against decisions concerning aliens “... 2.     In all cases, where the alien concerned is not in Spain, he or she may submit the relevant administrative or judicial appeals through the diplomatic or consular representations, which shall forward them to the competent authorities.” 33.     Institutional Law no. 4/2015 of 30 March 2015 on the protection of citizens’ safety introduced the tenth additional provision into the LOEX. The provision has been in force since 1 April 2015 (after the events in the present case). It lays down special rules for the interception and removal of migrants in Ceuta and Melilla. The provision in question reads as follows: “1.     Aliens attempting to penetrate the border containment structures in order to cross the border in an unauthorised manner, and whose presence is detected within the territorial demarcation lines of Ceuta or Melilla, may be returned in order to prevent their illegal entry into Spain. 2.     Their return shall in all cases be carried out in compliance with the international rules on human rights and international protection recognised by Spain. 3.     Applications for international protection shall be submitted in the places provided for that purpose at the border crossing points ; the procedure shall conform to the standards laid down concerning international protection.” B.     Law no. 12/2009 of 30 October 2009 on asylum and subsidiary protection 34 .     The relevant provisions of the Law on asylum read as follows: Section 21 – Requests made at a border crossing point “1.     Where a person not satisfying the conditions for entry into Spain applies for international protection at a border crossing point, the Minister of the Interior may declare the application inadmissible by a reasoned decision where it falls into one of the categories referred to in section 20(1). In any event the decision shall be served on the person concerned within a maximum period of four days from submission of the application. ...” Section 38 – Applications for international protection in embassies and consulates   “In order to examine applications made outside the country, and provided that the applicant is not a national of the State in which the diplomatic representation is located and that there is a risk to his or her physical integrity, the ambassadors of Spain may facilitate the transfer of the asylum-seeker or asylum-seekers to Spain for the purposes of submitting an asylum claim in accordance with the procedure laid down by this Law. The implementing rules for this Law shall lay down expressly the conditions of access to the embassies and consulates for persons seeking international protection, and the procedure for assessing the need to transfer them to Spain.” C.     Royal Decree no. 203/1995 of 10 February 1995 (implementing regulations for the Law on asylum) 35 .     The relevant provisions of Royal Decree no. 203/1995 read as follows: Article 4 – Place of lodging of the application “1.     Aliens seeking asylum in Spain shall lodge their application with one of the following entities: (a)     the Asylum and Refugees Office; (b)     the border posts for entry into Spanish territory; (c)     Aliens Offices; (d)     the provincial or district police stations designated by ministerial order; (e)     Spain’s diplomatic missions or consulates abroad. 2.     Where the UNHCR’s representative in Spain makes a request to the Spanish Government for the urgent admission of one or more refugees under UNHCR’s mandate who are at high risk in a third country, the Ministry of Foreign Affairs, via the diplomatic mission or consulate of Spain or of another country ... shall issue visas ... to facilitate the transfer of the persons concerned to Spain in conformity with Articles 16 and 29 (4) of this decree.” Article 16 – Transfer of the asylum-seeker to Spain “Where the person concerned is at risk and has submitted his or her application from a third country through a diplomatic mission or a consulate or in the circumstances provided for in Article 4 (2), the Asylum and Refugees Office may submit the case to the Inter-ministerial Committee on Asylum and Refugees with a view to authorising the person’s transfer to Spain pending examination of the file, after the issuance of the corresponding visa, laissez-passer or entry authorisation, which shall be processed as a matter of urgency. 2.     The Asylum and Refugees Office shall communicate the approval of the Inter ‑ ministerial Committee to the Ministry of Foreign Affairs and to the Directorate-General of Police, which shall inform the relevant border post. 3.     An asylum-seeker whose transfer to Spain has been authorised on account of the risks he or she faces shall be informed of his or her rights under Part 2 of Chapter I of this decree. He or she shall have a maximum period of one month from his or her entry into Spanish territory in which to exercise those rights. 4.     The competent body of the Ministry of Social Affairs shall adopt the appropriate measures for reception of the asylum-seeker by the designated public or private institution.” Article 24 – General processing rules “1.     The interested party may submit such documentation and additional information as he or she considers appropriate, and formulate such allegations as he or she deems necessary in support of his or her application, at any time during the processing of the file by the Asylum and Refugees Office. These actions must be verified prior to the hearing preceding the sending of the file to the Inter-ministerial Committee on Asylum and Refugees, in accordance with section 6 of Law no. 5/1984, which governs the right to asylum and refugee status. 2.     The Asylum and Refugees Office may request such reports as it deems appropriate from the organs of the State administration or from any other public entity. 3.     Likewise, the reports of UNHCR and of the legally recognised associations providing advice and assistance to refugees shall be included in the file where appropriate. 4.     The maximum period for processing the file shall be six months. If no decision has been taken on the asylum application on expiry of this period, the application may be considered to have been rejected, without prejudice to the obligation of the administrative authorities to take an express decision. In cases where the application is processed by a diplomatic or consular mission, the six-month period shall begin to run from the date of receipt of the application by the Asylum and Refugees Office. 5.     Where the procedure is halted for reasons attributable to the asylum-seeker, the Asylum and Refugees Office shall inform him or her that the procedure will expire after three months. If this period expires without the individual in question carrying out the necessary actions to revive the procedure, the procedure shall be discontinued and the interested party shall be notified at his or her last known address.” Article 29 – Effects of granting asylum “... 4.     Where the applicant has presented his or her application at a Spanish diplomatic or consular mission, these entities shall issue the visa or entry authorisation necessary for his or her travel to Spain, together with a travel document if necessary, as provided for by Article 16.” D.     Royal Decree no. 557/2011 of 20 April 2011 (implementing regulations for the LOEX) 36 .     The relevant provisions of Royal Decree no. 557/2011 read as follows: Article 1 – Entry via authorised crossing points “1.     Without prejudice to the provisions of the international conventions to which Spain is a party, aliens seeking to enter Spanish territory must do so via the authorised border crossing points. They must be in possession of a valid passport or travel document that provides proof of their identity and is accepted for that purpose, and, where required, of a valid visa. They must not be subject to an explicit entry ban. They must also present the documents required by these regulations explaining the purpose and conditions of their entry and stay, and must provide proof that they have sufficient funds for the expected duration of their stay in Spain or, where applicable, that they have the means of obtaining them lawfully. ...” Article 4 – Conditions “1.     The entry of foreign nationals into Spanish territory shall be subject to compliance with the following conditions. (a)     They must be in possession of the passport or travel documents referred to in the next Article. (b)     They must be in possession of the relevant visa in accordance with Article 7. (c)     [They must present] supporting documents concerning the purpose and conditions of their entry and stay, in accordance with Article 8. (d)     [They must provide] a guarantee, where applicable, that they have sufficient funds to live on for the expected duration of their stay in Spain, or that they have the means of obtaining those funds, and sufficient funds for travel to another country or return to the country from which they arrived, in accordance with Article 9. (e)     They must present, where applicable, the health certificates referred to in Article   10. (f)     They must not be subject to an entry ban for the purposes of Article 11. (g)     They must not present a danger to public health, public order, national security or Spain’s international relations or those of other States to which Spain is linked by a convention for this purpose. 2.     The Office of the Commissioner-General for Aliens and Borders ( Comisaría General de Extranjería y Fronteras ) may grant permission to enter Spain to aliens not satisfying the conditions set forth in the previous paragraph, where this is justified on exceptional humanitarian or public-interest grounds or in order to comply with the undertakings entered into by Spain.” Article 23 – Removals “1.     In accordance with section 58(3) of the LOEX, the creation of an expulsion file is not necessary ... for the removal of aliens in the following circumstances. ... (b)     Persons attempting to enter the country illegally. Aliens intercepted at the border or in the vicinity will be considered to fall into this category. 2.     In the cases covered by sub-paragraph (b) above, members of the coastal and border security forces who apprehend an alien attempting to enter Spain in an unauthorised manner shall take him or her to the police station immediately with a view to his or her identification and, where applicable, removal. 3.     In all cases covered by paragraph 1, aliens in respect of whom steps are being taken with a view to the adoption of a removal order shall have the right to be assisted by a lawyer, and by an interpreter if they do not understand or speak the official languages used. Such assistance shall be free of charge where the person concerned lacks the necessary financial resources ...” E.     The Guardia Civil border control operations protocol of 26   February 2014 (as applicable at the relevant time), which introduced the term “operational border” 37 .     The parts of the border control operations protocol of relevance to the present case read as follows: “With this system of fences, there is an objective need to determine when illegal entry has failed and when it has taken place. This requires defining the line which delimits the national territory, for the sole purpose of the rules governing aliens, a line which takes the physical form of the fence in question. Hence, where attempts by migrants to cross this line illegally are contained and repelled by the law ‑ enforcement agencies responsible for controlling the border, no actual illegal entry is deemed to have taken place. Entry is deemed to have been effected only where a migrant has penetrated beyond the above-mentioned internal fence, thereby entering the national territory and coming within the scope of the rules governing aliens ...” F.     Circular letter to all Spanish ambassadors 38 .     The relevant parts of this circular read as follows: “Law no. 12/2009 of 30 October 2009 on asylum and subsidiary protection, published in the Official Gazette on Saturday 31 October 2009 ... [Section 38 of this Law concerns ‘persons applying for international protection in embassies and consulates’] ... The key elements of this section are as follows. (1)     This section is not applicable if the person concerned is a national of the country where the diplomatic representation is located. (2)     In addition, his or her physical integrity must be at risk from causes linked to the scope of application of the Law (asylum or subsidiary protection). (3)     It is the task of Spanish ambassadors (but under no circumstances of consuls) to ‘facilitate [where appropriate] the transfer of the asylum-seeker or asylum-seekers to Spain’ for the sole purpose of ‘submitting the asylum claim in accordance with the procedure laid down by this Law’, that is to say, in Spain. This authority lies with the ambassadors alone. At all events neither ambassadors nor consuls are authorised by law to take a decision on applications for asylum or protection, still less to inform Spain thereof. This is crucial. If such a decision were to be taken, the Spanish State would be obliged to provide [the asylum-seeker with] legal assistance and protection [including against refoulement from the country] and to meet his or her needs (in terms of food and housing), including healthcare needs; section 38 makes no provision for this. Consequently, the fact that someone seeks to lodge an asylum application with an embassy or consulate does not in any circumstances entail the start of a procedure for possible admission. This does not prevent the ambassador, if he or she has determined that the conditions set out above are satisfied in a given case, from confirming the actual nationality [of the person concerned] and verifying whether his or her physical safety is at risk in the manner described above. Every effort must be made to obtain as much information as possible and to compile full records of the case and the allegations made by the potential applicant for asylum or protection. These are to be sent to the Directorate of Consular Affairs and Migration so that the supervisory authority can take cognisance of them, assess them and take a decision. In sum, if in the exercise of his or her duties the ambassador considers that ‘there is a risk to [the asylum-seeker’s] physical integrity’, he or she may secure the person’s transfer to Spain (this may entail issuing a visa and a one-way airline ticket to Spain, subject to prior approval by the Ministry). The second sub-section of section 38 provides for the adoption of implementing regulations, to be drawn up jointly by the Ministries of the Interior, Justice and Foreign Affairs. These regulations will lay down the procedure enabling ambassadors to assess the issue of possible transfer to Spain. With regard to proceedings already in progress, the first transitional provisio