In a landmark decision that will have potentially seismic implications for immigration policy in Europe, the European Court of Human Rights (ECHR) has ruled that Spain acted lawfully when it summarily deported two migrants who illegally tried to enter Spanish territory.

The Strasbourg-based court — which has jurisdiction over 47 European countries, and whose rulings are binding on all 27 member states of the European Union — ruled that in order for migrants to benefit from certain human rights protections, such as access to lawyers, interpreters and the right to remain in Europe, they must first enter European territory in a legal, as opposed to an illegal, manner.

The ruling, which effectively authorizes European governments summarily to deport illegal migrants immediately at the border, transfers some decision-making powers on immigration back to European nation states. The ruling is being viewed as a major victory for those who believe that sovereign nation states have the right to decide who is and is not allowed to enter their territory.

The Spanish case dates back to August 2014, when hundreds of migrants from sub-Saharan Africa stormed the border fence at Melilla, a Spanish exclave in North Africa. After spending several hours perched on top of the fence, two men, one from Ivory Coast and the other from Mali, climbed down and were handcuffed by Spanish border police, who handed them over to Moroccan authorities.

The two Africans said they were never given a chance to explain their personal circumstances or receive help from lawyers or interpreters. In February 2015, with the help of human rights lawyers, the pair took their case to the ECHR.

In October 2017, the ECHR ruled that summary deportations were a violation of European law. The Court determined that Spanish border police had failed to verify the identity of the migrants, or to provide them with access to lawyers, translators or medical personnel. It ordered Spain to pay each of the men €5,000. In December 2017, Spain’s previous center-right government appealed the ruling.

On February 13, 2020, the ECHR unanimously reversed its previous judgment. In a statement, it explained:

“The Court considered that the applicants had in fact placed themselves in an unlawful situation when they had deliberately attempted to enter Spain on 13 August 2014 by crossing the Melilla border protection structures as part of a large group and at an unauthorized location, taking advantage of the group’s large numbers and using force. They had thus chosen not to use the legal procedures which existed in order to enter Spanish territory lawfully. Consequently, the Court considered that the lack of individual removal decisions could be attributed to the fact that the applicants — assuming that they had wished to assert rights under the Convention — had not made use of the official entry procedures existing for that purpose, and that it had thus been a consequence of their own conduct.

“In so far as it had found that the lack of an individualized procedure for their removal had been the consequence of the applicants’ own conduct, the Court could not hold the respondent State responsible for the lack of a legal remedy in Melilla enabling them to challenge that removal.”

The ECHR added that the two men could have applied for visas, or for international protection, at an official border crossing or at Spanish embassies or consulates in Morocco or in their home countries.

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