Judicial About-Turn? On the ECHR Rulings on “Hot Returns” at the External Borders of the European Union and Humanitarian Visa for Refugees
Two remarkable rulings of the ECtHR demonstrate structural cleavages at the heart of European asylum law and policy. In the N.D. & N.T. judgement on the Spanish pushback practice, the Grand Chamber tried to combine migration control imperatives with the respect for the principle of refoulement in open-ended compromise formulae, which created more problems than the judgement solved. A few weeks later, judges rejected claims for legal entry by means of a humanitarian visa in the M.N. and others decision. This contribution critically analyses the contents and the effects of the recent case law, with a focus on the judgement vindicating the Spanish practice of “hot returns”. It demonstrates that the apparent indecisiveness of the judicial position reflects deeper tensions underlying international refugee law. Both rulings of the Grand Chamber direct our attention to the role of Europe’s top human rights court more generally. Theoretical and socio-legal arguments help explain why international judges tread carefully in the current sociopolitical context, which hinders dynamic interpretation and can result in a judicial change of direction.