Walking the (Barbed) Wire of the Prohibition of Collective Expulsion: An Assessment of the Strasbourg Case Law
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Following the Hirsi judgment dating back to 2012, the prohibition of collective expulsion gained a
prominent role in the European system of protection of human rights. Its implications on the restrictive
migration policies implemented by European States at the borders or elsewhere are farreaching.
With the N.D. & N.T. judgment of February 2020 the Strasbourg Court had the occasion
to assess the controversial Spanish policy of hot returns at its terrestrial border with Morocco. Contrary
to the previous findings of the Chamber, the Grand Chamber held that no violation of Art. 4
Protocol No. 4 of the Convention occurred. This article critically assesses the reasoning followed by
the Court in introducing a sort of ‘bad behaviour exception’ to that provision: several flaws and
questionable passages, both in abstract and in the application to the circumstances of the case, are
highlighted. It then argues that it is possible and desirable to significantly reduce the impact of this
unfortunate precedent on future cases dealing with collective rejections.