Access to the territory and push backs

Spain

Author

The main obstacles regarding the registration of asylum applications occur in cases of applications at the borders, and mostly at the Ceuta and Melilla border control checkpoints. These obstacles are mainly due to the impossibility of asylum seekers to cross the border and exit Morocco. There are several reported cases concerning refusal of entry, refoulement, collective expulsions and push backs at the Spanish borders.1 Although UNHCR has also established its presence in the Ceuta and Melilla borders, asylum seekers, and mostly Sub-Saharan nationals, face huge obstacles in accessing the asylum points at the Spanish border.

In March 2015, the Spanish government adopted an amendment to the Aliens Law, introducing the possibility to “reject at borders” third-country nationals that are found crossing the border illegally.

The amendment, introduced through the adoption of the Law “on the protection of citizen security”,2 includes a specific regulation within the Aliens Law concerning the “Special regime of Ceuta and Melilla”. This new regime consists of three new elements:

  1. It rules that “those foreigners who are detected at Ceuta’s and Melilla’s border lines when trying to pass the border’s contentive elements to irregularly cross the border, can be rejected to avoid their illegal entry in Spain”;


  2. It declares that “these rejections will be realised respecting the international law on human rights and international protection ratified by Spain”;


  3. Lastly, it states that “international protection claims will be formalised at the ad hoc border point in line with international protection obligations.”

In practice, when a person is found within Spanish border territory, which includes the land between the Moroccan and Spanish border, he or she is taken outside the Spanish border through existing passages and doors controlled by border guards.

The amendment aimed at legalising the push backs practiced in Ceuta and Melilla, and has been criticised for ignoring human rights and international law obligations towards asylum seekers and refugees by several European and international organisations such as UNHCR,3 the Council of Europe Commissioner for Human Rights,4 and the UN Committee against Torture. Critics regard the fact that people are not able to request asylum, and that the law mostly affects groups in vulnerable situation, including unaccompanied minors and victims of trafficking.

On 30 July 2015, the European Court of Human Rights (ECtHR) published its first decision on a case brought by two Sub-Saharan men – from Mali and the Ivory Coast respectively – who alleged having been summarily and collectively expelled from Spanish territory on 13 August 2014 as part of a group of over 75 individuals.5 Now Spain is requested to provide information on the procedures and identification measures taken at the time of the applicants’ expulsion.

During 2016, there have been several critiques by organisations defending migrants and refugees’ rights in Spain. The last occurrence concerning this topic happened on 31 December 2016, when a group of more than 1,000 migrants from Sub-Saharan Africa tried to jump a high double fence between Morocco and the Spanish enclave of Ceuta.6 From the total amount of people only two persons entered Spanish territory, after being severely injured and treated in the hospital. The remaining people were returned to Morocco. A similar assault on 9 December 2016 saw more than 400 migrants entering the tiny enclave, and another incident involving over 400 migrants occurred on 17 February 2017.7

A coalition of 85 Spanish NGOs wrote an open letter to the Spanish Minister of Interior, demanding clarification over the potential push backs and the orders given to the Spanish Border Guards.8

Moreover, the Provincial Court of Cádiz, with headquarters in Ceuta, has ordered the re-opening of the “El Tarajal” case,9 which regards 15 migrants who drowned in February 2014 after attempting to reach the Spanish enclave of Ceuta by sea and were repelled with rubber bullets and smoke grenades by officers from the Guardia Civil.

The case was shelved in October 2015 after a court in Ceuta decided that the migrants, who departed from El Tarajal beach along with some 200 others and attempted to swim around the fence that separates Ceuta from Moroccan territory, “were not persons in danger in the sea” in the sense given in the UN Convention on Safety of Life at Sea because “they assumed the risk of illegally entering Spanish territory by swimming at sea.” It ruled that responsibility for the deaths could not be allocated to any of the 16 Guardia Civil officers who were accused of murder and causing injury.

The Provincial Court of Cádiz, however, stated on 12 January 2017 that there are survivors who were never called as witnesses and that the forensic investigations undertaken on the bodies of the dead were “unnecessarily rushed”, although there is now no possibility of undertaking further examinations of the corpses. The court found that insufficient witness evidence had been gathered and that the post-mortems carried out were inadequate. The court is also demanding that contact be made with the judicial authorities in Morocco, from whom assistance was sought three times previously but without any response. The decision comes in response to a complaint submitted by a Madrid lawyer working with the European Centre for Constitutional and Human Rights (ECCHR) against the closing of proceedings in October 2015.

  • 1. El Pais, ‘Why Spain is not an option for Syrian refugees seeking a new life’, 29 May 2015, available at: http://bit.ly/1Q8IUK7. See also the pending case before the European Court of Human Rights (ECtHR) N.D. and N.T. v. Spain, Applications No 8675/15 and 8697/15. A case summary may be found in the European Database of Asylum Law (EDAL) here: http://bit.ly/21xtu7g.
  • 2. Organic Law 4/2015 of 30 March 2015 on the protection of citizen security.
  • 3. UNHCR Spain, ‘Enmienda a Ley de Extranjería vincula gestión fronteriza y respeto de obligaciones internacionales’, 13 March 2015, available in Spanish at: http://bit.ly/1oEUcMD. See also ECRE, ‘Spain: New law giving legal cover to pushbacks in Ceuta and Melilla threats the right to asylum – Op-Ed by Estrella Galán, CEAR’, 27 March 2015, available at: http://bit.ly/1FRab0K.
  • 4. Council of Europe Commissioner for Human Rights, Third party intervention in N.D. v. Spain and N.T. v. Spain, 9 November 2015, available at: http://bit.ly/1oN9Vdk.
  • 5. ECtHR, N.D. and N.T. v. Spain, Application Nos 8675/15 and 8697/15.
  • 6. Euractiv, ‘1,000 migrants storm border fence at Spanish enclave of Ceuta’, 2 January 2017, available at: https://goo.gl/84js5S.
  • 7. El Pais, ‘Más de 400 inmigrantes acceden a Ceuta en un asalto masivo a la valla’, 17 February 2017, available in Spanish at: http://bit.ly/2lfOErW.
  • 8. ECRE, ‘Coalition of 85 Spanish NGOs demand clarification of potential push backs of over a thousand people at Spanish-Moroccan border’, 13 January 2017, available at: https://goo.gl/6VE8tV; The open letter may be found at: https://goo.gl/Cn3j2y.
  • 9. El Diario, ‘Las muertes de Ceuta’, available in Spanish at: https://goo.gl/uU1Me3.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti