JOINT DISSENTING OPINION OF JUDGES RAVARANI, BOÅ NJAK AND PACZOLAY

1. With due respect to our colleagues, we unfortunately cannot agree with the majority that there has been a violation of Articles 3 and 13 of the Convention.

2. It is undisputed that in the present case, the applicants presented themselves at different border points between Belarus and Lithuania on three occasions and that on all three occasions they were refused entry to the territory of Lithuania. The parties are in dispute as to whether the applicants, as they affirm, presented an asylum request or, as the Government hold, they did not present such a request and simply tried to enter Lithuanian territory. As a matter of fact, the impugned decisions did not consider them as asylum-seekers.

3. As far as we understand the Lithuanian legal system, the law distinguishes between ordinary entry to the territory and a request for asylum.

In the event of entry without an asylum request, the competent border authorities – the SBGS – are empowered and obliged to check whether the alien has a valid visa or residence permit. In the event of refusal of entry, the alien has the right to appeal the decision before the administrative courts. Whereas during the period allowed for appeal aliens have the right to remain on the territory of Lithuania, the appeal in itself is not suspensive but the competent court can confer such effect on its decision (see paragraphs 37 and 38 of the judgment).

Where an asylum request is lodged, the decision as to whether to allow the asylum-seeker to enter Lithuania is taken by the Migration Department. Refusal decisions can be appealed against, and during the time allowed for lodging such an appeal and, moreover, during the appeal itself, asylum-seekers are entitled to remain at the border checkpoint (ibid.).

4. In the present case, the applicants did not lodge an appeal against the decisions, which, considering them as “ordinary” aliens seeking entry to Lithuania who had failed to present the necessary documents, refused them entry to the territory. They considered that, since such an appeal did not have an automatic suspensive effect, it could not be considered an effective remedy preventing them from being returned to the country they had come from and, eventually, their country of origin, with the risk of ill-treatment.

It seems undisputable that if the applicants were “ordinary” aliens seeking entry, the remedy available under Lithuanian law did not fall short of the Convention requirements, as the Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, for example, F.G. v. Sweden [GC], no. 43611/11, ECHR 2016, and Ãœner v. the Netherlands [GC], no. 46410/99, ECHR 2006 ‑ XII) and, in consequence, the provision and mechanism of remedies in the event of refusal of entry remain in the discretion of the domestic authorities.

The question remains whether in the case of an alleged risk of ill-treatment the available domestic remedies were effective. In the event of a request for asylum, be it oral or in writing, pursuant to Lithuanian law the decision on whether to examine an asylum application on the merits is taken by the Migration Department within forty-eight hours of the submission of such an application. Although it is not expressly stated in the judgment, we infer from paragraph 28 that until such time as a preliminary decision is taken, the alien will remain at a border check-point or in a transit zone. If the asylum-seeker’s request has been rejected, he or she can appeal and during the period for lodging an appeal and while the appeal is pending, he or she cannot be removed from Lithuanian territory (see point 3 above).

5. In that context, it is noteworthy that the present judgment relies on the Court’s case-law concerning remedies against decisions of removal from a contracting State to a country where there is a risk of ill-treatment, which are considered effective only when they have automatic suspensive effect (see paragraph 83 of the judgment). In such cases indeed, the Contracting States are bound by the requirements, both substantive and procedural, stemming from Articles 2 and 3 of the Convention and must ensure that an applicant’s request is duly examined before he or she is removed from their territory. In the judgments in M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011, and L.M. and Others v. Russia , nos. 40081/14 and 2 others, 15 October 2015, the Court examined situations where the applicants had entered the territory of the respective respondent States but had later been the subject of expulsion orders. In the present case, the applicants were refused entry to Lithuanian territory. The Convention system makes a clear distinction between expulsion and the right to enter a territory (compare the first and second paragraphs of Article 3 of Protocol No. 4 to the Convention). While the right of entry is reserved for the nationals of each High Contracting Party (see Article 3 § 2 of Protocol No. 4), there are a number of Convention guarantees applicable in the area of expulsion of aliens, either expressly provided for by the Convention (see Article 4 of Protocol No. 4) or developed through the case-law of the Court. The distinction between “expulsion” on one hand and “refusal of entry” or “non-admission” on the other is also well-grounded in international law, according to which the term “expulsion” applies only to aliens present on a territory of or inside a returning State. For example, Article 2 of the International Law Commission’s Draft Articles on the Expulsion of Aliens distinguishes between “expulsion” and “non ‑ admission”. The term “expulsion”, used in this sense, does not encompass rejection at the border or other refusal to allow entry to the national territory.

6. In the absence of well-established case-law or at least unequivocal authorities in the Court’s case-law governing situations such as that in the present case, we believe that the present judgment should have taken a clear position as to what are the precise Article-3 obligations of the authorities in situations where an alien presents himself or herself at a border and submits a claim for asylum, including the prima facie assessment to be made, the legal status of the alien during this period and the decisions – refusal of entry or removal from territory – that can be taken if the authorities deem that the asylum-seeker did not have, at least, an arguable claim that – either in the country of origin or in the country where he or she risks refoulement (a question which also deserved a cumulative, alternative or exclusive answer by the Chamber) – there would be a risk of ill-treatment.

7. Be that as it may, apart from the issue of non-exhaustion of an effective legal remedy and the lacunas in the assessment of the authorities’ legal obligations once an alien presents himself or herself at the border claiming asylum, we cannot agree with the factual assumptions underlying the majority’s decision. It must be underlined that it has not even been established by the Court that the applicants ever submitted a claim to the authorities of the respondent State alleging that, in the event of refusal to grant entry, they would run the risk of being returned to Russia, where in turn they would face the risk of ill-treatment. Furthermore, it appears that the applicants themselves do not assert that they have ever presented such a claim to the Lithuanian authorities.

8. In respect of the applicants’ attempt to enter the territory of the respondent State on 11 May 2017, they did not provide the border authorities with any reasons whatsoever as to why they thought they were entitled to enter.

Previously, on 16 April 2017 the applicants had written the word “azul” (which, according to the applicants, was commonly used by asylum-seekers from Chechnya) in Cyrillic script on the decisions refusing them entry, at the place indicated for and instead of their signatures. We believe that in the absence of any other indications, and taking into account the fact that the Russian language and the Cyrillic script are not in official or even widespread use in Lithuania, the border guards cannot be expected to master colloquial terms from a region within a third country. Given that the applicants’ surnames begin with the letter A, the border authorities had no reason to doubt that the word written by the applicants was not their signature.

In respect of the applicants’ attempt of 22 May 2017, they assert that they submitted a written asylum application in the Russian language and in Cyrillic script to the Lithuanian authorities. They provided the Court with a photograph of that application, together with the train tickets, which they claim was taken at the premises of the border checkpoint. However, the photograph shows nothing conclusive apart from the train tickets and the application. It cannot be regarded as evidence that the request was actually remitted to the authorities. In sum, similarly to the situation of 16 April 2017, there is no indication that the applicants actually presented any claim to the Lithuanian authorities referring to the risk of ill-treatment in the event of refusal of entry.

9. According to the Court’s well-established case-law, where an applicant claims that a Contracting State has violated its obligations under Articles 2 or 3, he or she must unequivocally establish that there was a claim that in the event of return to the country of origin or a third country, there was a real risk of ill-treatment, thus putting the domestic authorities in a position to comply with their Convention obligations (see F.G. v. Sweden , cited above, § 125).

The majority, apart from conferring decisive importance on the word “azul” apposed in lieu of their signatures in the decisions on refusal of entry, omitting any discussion of the consequences to be drawn when this word is apposed in a field reserved for signatures and the applicants’ names begin with the letter “A”, did not address the Government’s arguments, such as the applicants’ failure to make use of the available remedies – irrespective of their suspensive character – against such refusal decisions, in which they could have unequivocally raised the asylum issue and brought their request to the knowledge of the authorities, which could not then have disregarded their request. Moreover, the judgment itself refers to domestic case-law showing that, in cases where a genuine request for asylum was made, the competent authorities were ordered by the courts to allow the individuals concerned to enter Lithuanian territory (see paragraphs 48-50 of the judgment).

10. In short, it is our view that, in spite of a lack of any convincing evidence in this respect, the majority accepted an assumption that the applicants had applied for asylum at the Lithuanian border. Furthermore, the majority failed to address several fundamental questions pertaining to the interpretation of Article 3 of the Convention, namely whether the present situation is to be distinguished from the situation of expulsion and what precise obligations apply to it. This made it impossible for us to vote with the majority and to find a violation of Articles 3 and 13 of the Convention.

[1] For the purposes of this opinion, the notions of refoulement , refugee and asylum-seeker are to be understood with the meaning given in my separate opinion in Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, 23 February 2012.

[2] Hirsi Jamaa and Others , cited above. On the Hirsi case, see, among others, Papastavridis, “European Convention on Human Rights and the Law of the Sea: The Strasbourg Court in Unchartered Waters?” in Fitzmaurice and Merkouris (eds.), The Interpretation and Application of the European Convention of Human Rights: Legal and Practical Implications , Leiden: Brill, 2013; Giuffré, “Watered-Down Rights on the High Seas: Hirsi Jamaa and Others v Italy (2012)” (2012) 61 International and Comparative Law Quarterly 728; and Moreno-Lax, “Hirsi Jamaa and Others v. Italy or the Strasbourg Court versus Extraterritorial Migration Control?” (2012) Human Rights Law Review 574.

[3] De Souza Ribeiro v. France [GC] , no. 22689/07, 13 December 2012.

[4] For example, Al Skeini and Others v. the United Kingdom , no. 55721/07, § 130, 7 July 2011.

[5] Hirsi Jamaa and Others , cited above, § 74. The Inter-American Court of Human Rights has taken a similar approach. See, for instance, IACrtHR, 16 February 2017, Favela Nova Brasilia v. Brazil , Series C no. 333, § 174; IACrtHR, 29 July 1988, Velásquez Rodriguez v. Honduras , Series C no. 4, § 164.

[6] It is highly significant that in Sharifi and Others v. Italy , no. 16643/09, 21 October 2014, the Italian Government did not even raise the issue of jurisdiction.

[7] Hirsi Jamaa and Others , cited above, § 178. This is not a new concern for the Court. In Sargsyan v. Azerbaijan [GC] , no. 40167/06, § 148, 16 June 2015, the Court recognised the respondent State’s jurisdiction over a militarily disputed area, “taking into account the need to avoid a vacuum in Convention protection”.

[8] Hirsi Jamaa and Others , cited above, § 179.

[9] My separate opinion in Hirsi Jamaa and Others , cited above.

[10] N.D. and N.T. v. Spain , nos. 8675/15 and 8697/15, 3 October 2017.

[11] N.D. and N.T. , cited above, § 54.

[12] N.D. and N.T ., cited above, § 52.

[13] This is in line with the ICJ, 9 July 2004, Adv. Opinion, Legal consequences of the construction of a wall in the Occupied Palestinian Territory , I.C.J. Reports 2004, which did not consider those parts of the wall that were built by Israel inside its own territory, thereby implicitly recognising it as an internal matter of the State of Israel.

[14] See my concurring opinion in Hirsi Jamaa and Others v. Italy [GC], cited above.

[15] In this regard, the Committee on the Rights of the Child states that “when assessing refugee claims..., States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention” (25 January 2018, I.A.M. v. Denmark , no. 3/2016, § 11.3).

[16] With regard to the principle of non-refoulement , see Article 33 of the 1951 Geneva Convention relating to the Status of Refugees.

[17] UNHCR, 26 January 2007, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol , p. 2, part I) A) 1) i) 5).

[18] Dictionnaire juridique , Gérard Cornu. – 11 e ed. – Paris: Quadrige/ PUF, 2016, p. 877.

[19] Traité du droit de l’asile , Alland and Teitgen-Colly. – Paris: Lgdj, 2002, p. 229.

[20] In this regard, see Lauterpacht and Bethlehem, “The scope and content of the principle of non-refoulement : Opinion”, in Refugee Protection in International Law – UNHCR’s Global Consultation on International Protection, Cambridge, 2003, 97-149, sp. p. 111: “It follows that the principle of non-refoulement will apply to the conduct of State officials or those acting on behalf of the State wherever this occurs, whether beyond the national territory of the State in question, at border posts or other points of entry, in international zones, at transit points, etc.”. See also the Commentary to Draft articles on the expulsion of aliens (2014), adopted by the International Law Commission at its sixty-sixth session, in 2014, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/69/10), Article 2 (5) .

[22] UNHCR, Executive Committee, 12 October 1977, Non-refoulement , No.6 (XXVIII)-1977 (c); see also UNHCR, Executive Committee, 23 August 1977, Note on Non-Refoulement , EC/SCP/2.

[23] A combined reading of Articles 2(2)(a), 4(4) and 5 of Directive 2008/115/EC of the European Parliament and the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals shows indeed that the principle of non-refoulement applies in the event of a refusal of entry at the border. In this regard, see, for example, the FRA report, December 2016, Scope of the principle of non-refoulement in contemporary border management: evolving areas of law (http://fra.europa.eu/en/publication/2016/scope-principle-non-refoulement-contemporary-border-management-evolving-areas-law), 15-16 and 38-39.

[24] See, for example, PACE, 21 June 2011, Resolution 1821 (2011), The interception and rescue at sea of asylum-seekers, refugees and irregular migrants , sp. §§ 7-9.12; PACE, 25 January 2000, Recommendation 1440 (2000), Restrictions on asylum in the member states of the Council of Europe and the European Union , sp. §§ 5-6.6.

[25] See, for example, CM, Resolution 67 (14), 29 June 1967, Asylum to persons in danger of persecution .

[26] In this regard, see The Haitian Centre for Human Rights et al. v. United States , Case 10.675, Report No. 51/96, OEA/Ser.L./V/II.95, Doc. 7 rev., 13 March 1997, § 157; IACHR, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination System , OEA/Ser.L/V/II.106, Doc. 40 rev. (2000), 28 February 2000, § 25: “The obligation of non-return means that any person recognized or seeking recognition as a refugee can invoke this protection to prevent their removal. This necessarily requires that such persons cannot be rejected at the border or expelled without an adequate, individualized examination of their claim” and, recently, IACHR, OAS/Ser.L/V/II. 155 Doc. 16. In this report the Commission affirms firstly that “[t]he principle of non-refoulement also applies to asylum-seekers and refugees whose status has not yet been determined; refugees who have not yet been recognized officially as such; as well as by those who assert their right to seek and receive asylum and who are either on an international border or have crossed it without being admitted officially or legally into the territory of the State” (p. 48, § 101). Interestingly, the Commission also points out that it “shares the view of the European Court on Human Rights expressed in Hirsi Jamaa and Others v. Italy that the prohibition on collective expulsions applies to any measure which has the effect of preventing migrants from reaching the borders of States or to push them to another State” (p. 49, § 105). Lastly the Commission points out that this can even involve extraterritorial exercise of jurisdiction “when this means that [the persons concerned] are prevented from presenting a claim for asylum or non-refoulement ” (ibid).

[27] IACHR, OAS/Ser.L/V/II. 155 Doc. 16, 24 July 2015, p. 29, §39, footnote 22.

[28] The European Court of Human Rights has already retained such a presumption regarding the exercise of jurisdiction throughout the State’s territory. See Al Skeini and Others , cited above, §131; in this sense, see also Assanidze v. Georgia , no. 71503/01, § 139, 8 April 2004.

[29] UN, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment , (doc. A/70/303, 7 August 2015), § 13.

[30] Jari Pirjola, “Shadows in Paradise – Exploring Non-Refoulement as an Open Concept” (2007) 19 International Journal of Refugee Law 656.

[31] Paragraph 10 and 13 of the present judgment.

[32] Paragraph 15 and 17 of the judgment.

[33] Paragraph 18 and 21 of the judgment.

[34] Paragraph 70 of the judgment.

[35] See my concurring opinion in Hirsi Jamaa and Others , cited above.

[36] Hirsi Jamaa and Others , cited above, § 169.

[37] Hirsi Jamaa and Others , cited above, § 173.

[38] Hirsi Jamaa and Others , cited above, § 174.

[39] Hirsi Jamaa and Others , cited above, § 177.

[40] Hirsi Jamaa and Others , cited above, § 180.

[41] Hirsi Jamaa and Others , cited above, § 186. With regard to Article 4 of Protocol No. 4, the Court used interchangeably the word “removal” in paragraphs 169, 176, 180, 204 and 205, the word “return” in paragraphs 201-203 and the word “expulsion” in paragraphs 166, 168, 169, 172-174, 177, 178, 183 and 184. The Court also referred to the principle of non-refoulement in paragraphs 134, 135 and 146 under the Article 3 evaluation.

[42] My separate opinion in Hirsi Jamaa and Others , cited above.

[43] Hirsi Jamaa and Others , cited above, § 160.

[44] Sharifi and Others , no. 16643/09, § 193, 21 October 2014. The High Commissioner for Refugees expressed his concern with the Italian policy of refusal of admission to the territory and “immediate refoulement ” in the Adriatic ports regarding persons coming from Greece (ibid., § 205).

[45] N.D. and N.T. , cited above, § 104. Exactly the same argument had already been used in Sharifi and Others v. Italy , § 212,

[46] N.D. and N.T ., cited above, § 105.

[47] N.D. and N.T ., cited above, § 121. In other words, the Court equated the immediate return of the applicants to a “ de facto expulsion”.

[48] On the situation on the ground in Melilla and the Spanish response to the migration pressure, see the astonishing reports of the Committee for the Prevention of Torture (CPT/Inf (2015) 19), 9 April 2015, and of Amnesty International, Fear and Fences, Europe’s approach to keeping refugees at bay , 2015. In 2015 the CPT recalled that “States are obliged to screen intercepted migrants with a view to identifying persons in need of protection, assessing those needs and taking appropriate action. In order to prevent persons from being exposed to the risk of ill-treatment, the CPT recommends that adequate guarantees to this effect be provided in national legislation and that Spanish law enforcement officials be instructed accordingly…; [that] the Spanish authorities take the necessary steps to ensure that MAF officials do not enter Spanish territory to apprehend and forcibly return irregular migrants to Morocco, outside any legal framework, and also that no foreign national is handed over to these forces in light of the risk of ill-treatment”. The UNHCR was also concerned that practices applied in the Spanish autonomous cities of Ceuta and Melilla resulted in an increasing number of persons potentially in need of international protection who did not lodge applications and that, in addition, those who did apply increasingly withdrew their asylum applications, often resulting in prompt and automatic transfers to the mainland (A/HRC/WG.6/21/ESP/2, 11 November 2014, paragraph 74). The situation is not new (see the CPT report of March 2006, CPT/Inf (2007) 30), referring to the “practice of direct return of Moroccan nationals from Spain to Morocco, without application of the procedures otherwise applying to the return of foreign nationals.”).

[49] N.D. and N.T. , cited above, §§ 76 and 77.

[50] Hirsi Jamaa and Others , cited above, § 179, and Sharifi and Others , cited above, § 224.

[51] N.D. and N.T ., cited above, § 72.

[52] See my separate opinion in De Souza Ribeiro , cited above,

[53] Report of the Working Group on the Universal Periodic Review, A/HRC/29/8, 15 April 2015, page 25.

[54] Hirsi Jamaa and Others , cited above, § 172.

[55] See the references in CEDAW, Concluding observations on the 7th and 8th report of Spain, CEDAW/C/ESP/CO/7-8 (2015), paragraphs 36-37; Human Rights Committee, Concluding observations on the 6th periodic report of Spain, CCPR/C/ESP/CO/6 (2015), paragraph 18; CAT, Concluding observations on the 6th periodic report of Spain, CAT/C/ESP/CO/6 (2015), paragraph 13; and the Communications report of special procedures, 2 June 2015, A/HRC/29/50.

[56] Hirsi Jamaa and Others , cited above, § 179.

[57] Amuur v. France , no. 19776/92, 25 June 1996, § 43, and M.S.S. v. Belgium and Greece [GC] , no. 30696/09, 21 January 2011, § 216. In this sense, see also Khlaifia and Others v. Italy [GC] , no. 16483/12, 15 December 2016, §162.

[58] UN, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment , prec., § 17.

[59] OCHR, Recommended principles and Guidelines on Human Rights at international borders/ https://www.ohchr.org/en/issues/migration/pages/internationalborders.aspx , pt. 22.

[60] Ibid. For further considerations regarding this issue, see also Complaint mechanisms in border management and expulsion operations in Europe. Effective remedies for victims of human rights violations?, S. Carrera and M. Stefan. – Brussels: Centre for European Policy Studies, 2018.

[61] Report on the Human Rights Situation of Refugees and Migrant Families and Unaccompanied Children in the United States of America , prec., p. 30, § 42. In the decision on precautionary measures concerning persons detained by the United States in Guantanamo Bay , Cuba (IACHR, 12 March 2002, (PM 259/02)), the Commission asserted more broadly, that “International and regional jurisprudence clearly indicates that, whenever a State exercises effective control over a territory, area, place or person outside its borders, it is required not only to abstain from unlawful acts but also to ensure a broader range of positive human rights obligations. States have positive obligations to protect individuals against infringement of their rights and preventive obligations to ensure that actors over whom they have jurisdiction, including extraterritorially, do not engage in or contribute to acts of torture.” (§ 35)

[62] IACrtHR, 19 August 2014, Advisory Opinion OC-21/14, Rights and guarantees of children in the context of migration and/or in need of international protection , Series A No. 21. §§ 81 and 210; IACHR, 13 March 1997, Haitian Boat People (United States of America) , Merits Report No. 51/96, Case 10.675, §§ 156-157. See also the Recommendation of the Commissioner for Human Rights concerning the rights of aliens wishing to enter a Council of Europe member state and the enforcement of expulsion orders , 19 September 2001, CommDH(2001)19, § 2.

[63] See, for instance, the Report of the International Law commission on the work of its fifty-ninth session, (A/62/10), § 253; IACHR, 12 March 2002, Decision on precautionary measures concerning persons detained by the United States in Guantanamo Bay , Cuba (PM 259/02), §35.

[64] IACrtHR, Vélez Loor v. Panama , 23 November 2010, Series C no. 218, § 97: “in the exercise of their authority to set immigration policies, States may establish mechanisms to control the entry into and departure from their territory of individuals who are not nationals, provided that these are compatible with the standards of human rights protection established in the American Convention. Indeed, although States enjoy a margin of discretion when determining their immigration policies, the goals of such policies should take into account respect for the human rights of migrants”.

[65] The report on the Scope of the principle of non-refoulement in contemporary border management: evolving areas of law , which was published by the European Union Agency for Fundamental Rights, highlights, for its part, that “The Charter applies to the ... Member States when they act within the scope EU law” and that “this includes also conduct at the border” (FRA, December 2016, prec., p. 8).

[66] For an example in this sense: the Court has already affirmed the applicability of the Convention concerning the international zone of Paris-Orly Airport (see Amuur v. France , no. 19776/92, §§ 43 and 52, 25 June 1996).

[67] CJEU, 17 January 2013, Zakaria , C-23/12.

[68] In this regard, see Article 6 of 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) (OJ 2006 L 105, p. 1): (1) “Border guards shall, in the performance of their duties, fully respect human dignity. …”; (2) “While carrying out border checks, border guards shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”. See also Article 4 of Regulation (EU) No. 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, which is entitled “Protection of fundamental rights and the principle of non-refoulement ”. This approach is also contained in EU soft law: See, for example, European Commission, 27 September 2017, C(2017) 6505, Annex to the Commission Recommendation establishing a common “Return Handbook” to be used by Member States’ competent authorities when carrying out return related tasks, Annex I.

[69] Paragraph 102 of the judgment.

[70] See CM, Resolution 67 (14), 29 June 1967, Asylum to persons in danger of persecution , pt. 2.

[71] Paragraph 115 of the judgment.

[72] In this regard, see for example PACE, 29 January 2004, Recommendation 1645 (2004), Access to assistance and protection for asylum-seekers at European seaports and coastal areas .

[73] For a recent confirmation, see UNHCR, Executive Committee, 4 June 2018, Note on international protection , EC/SC/69/CRP.8, § 21. Special Representative of the Secretary General on migration and refugees - Tomáš Boček ( First report on the activities of the Secretary General’s Special Representative on Migration and Refugees (available on the website of the Council of Europe, https://www.coe.int/en/web/special-representative-secretary-general-migration-refugees ), sp. p. 21, § 58) affirms for its part, that it is necessary to “continue to uphold the right to apply for asylum for all who seek international protection and increase our efforts to ensure that this right is effectively secured in practice. This means zero tolerance towards pushbacks at our member States’ borders and simplified access to asylum procedures, in accordance with human rights obligations”.

[74] OCHR, Recommended principles and Guidelines on Human Rights at international borders, https://www.ohchr.org/en/issues/migration/pages/internationalborders.aspx . See, specifically, point 22.7): “The right to due process of all migrants regardless of their status shall be protected and respected in all areas where the State exercises jurisdiction or effective control. This includes the right to an individual examination, the right to a judicial and effective remedy, and the right to appeal”.

[75] In this regard, see, for example, Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection, 26 June 2013, points 25 and 26.

[76] F.G. v. Sweden [ GC ], no. 43611/11, §§ 119-127, 23 March 2016.

[77] Ibid., §§ 119-127.

[78] For an example of this approach, see Golder v. the United Kingdom (plenary), no. 4451/70, § 35, 21 February 1975.

[79] Concerning the right of access to asylum procedures, see also Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection, 26 June 2013, point 8: “people indeed must be ensured access to legally safe and efficient asylum procedures”. Chapter II of the Directive also applies to border crossings.

[80] The applicant must indeed demonstrate a “foreseeable, real and personal risk” (Committee against Torture , J.B. v. Switzerland , 17 November 2017, no. 721/2015, § 7.4) or a “real risk of irreparable harm” (CCPR, 8 November 2017 , N.D.J.M.D. v. Canada , no. 2487/2014, § 11.2).

[81] Hirsi Jamaa and Others , cited above, § 133, and M.S.S. v. Belgium and Greece [GC] , no. 30696/09, § 359, ECHR 2011.

[82] Paragraph 108 of the judgment.

[83] Paragraph 83 of the judgment and M.S.S. v. Belgium and Greece [ GC] , no. 30696/09, § 293, 21 January 2011.

[84] CJEU, 19 June 2018, Gnandi (GC) , C-181/16, § 54.

[85] Paragraph 105 of the present judgment.

[86] Tarakhel v. Switzerland [GC] , no. 29217/12, § 97, 4 November 2014.

[87] IACrtHR, 23 November 2010, Vélez Loor v. Panamá , Series C no. 218, § 98. Furthermore the Inter-American Court stated in this case that in “application of the principle of effectiveness and given the need to provide protection for individuals or groups in situations of vulnerability, the Court shall interpret and give content to the rights enshrined in the Convention, in accordance with the international corpus juris in relation to the human rights of migrants” (ibid, § 99).

[88] Ibid, § 99.