UNLAWFUL DOESN’T MEAN RIGHTLESS
Last week El Faro de Melilla wrote that four people had been illegally expelled from Melilla, after having entered Spanish territory through the city's North Dock.
According to information from the Moroccan Association of Human Rights (AMDH) of Nador, the Spanish authorities have intercepted four young people, two of them minors, of Moroccan origin in Spanish territory. They transferred them later to the border perimeter to force their return into Moroccan territory where, according to the AMDH, they have been detained for 24 hours by the Moroccan forces.
Pretty arrogantly, the Delegación de Gobierno justifies its actions by referring to the decision of the European Court of Human Rights (ECHR) of February last year and "invites" the associations that believe that certain human rights have been violated to file a complaint against its agents. Easy, isn't it?
Trying not to be blinded by anger, frustration and concern for these people, we want to reflect (perhaps prior to such an invitation to file a complaint) on what this return and the response of the Spanish authorities to the public opinion entails. Ethically it would be easy to answer why Spain's action is not correct (once again), but there are also very strong legal arguments that support this position.
First of all, pushbacks are a violation of both fundamental rights recognized in the Spanish Constitution, as well as in international law, which includes, among others, the non-refoulement principle, an absolute and non-derogable principle that prevents returning an individual to a territory where his or her life or freedom would be in danger.
Moreover, such refoulement is a potential act of torture. The European Committee for the Prevention of Torture (CPT) states in a report addressed to the Spanish government in 2014: "taking into account the risk of abuse inflicted by members of the Moroccan auxiliary forces on irregular migrants returned to Morocco, the CPT recommends that the Spanish authorities ensure that no person is handed over to them."
The decision of the ECHR that according to the Delegación de Gobierno supports executing pushbacks needs to be nuanced. Although the Grand Chamber of the ECHR put the legitimate right of defense of the Spanish State before the respect of the human rights of the sub-Saharan migrants returned in the heat of the moment (and this has been discussed by numerous jurists and human rights organisations), this judgment is not a blank check for the Spanish forces to return people at the border with impunity. Neither the nationality of the returnees nor the way of attempting to enter the country coincides in last week's case with that of the sentence, so it seems difficult to apply it to cases such as swimming entries.
Of course, the judgment does not include the possibility of returning persons appearing or claiming to be minors and/or asylum or subsidiary protection seekers, which, moreover, contravenes international child protection and international protection law, respectively.
In addition, the Grand Chamber takes for granted the argument that the migrants did not exhaust all options before jumping the fence without assessing that these options, in practice, do not exist. It is evident that this argument has lost all its value since Morocco totally closed the border crossings with Ceuta and Melilla in March 2020, making it absolutely impossible for people trying to reach Spain through these cities to have been able to access "other channels" of legal entry.
Despite the "legalisation" of the concept of rejection at the border, performed by Law 4/2015 (known as the Ley Mordaza, or Gag Law), it’s good to know that this concept has its origin in the idea of “flexible border”, implemented by the former Minister of Interior Fernandez Diaz (Partido Popular - People’s Party). The idea of a flexible border implies that Spanish soil doesn't begin at the foot of the Spanish-Moroccan fence, but that its beginning would be linked to the imaginary line formed by the agents of the Guardía Civil, so that migrants would not have entered Spain despite crossing the border fences. This imaginative attempt to circumvent the law has had, unfortunately, not only a legal embodiment in the aforementioned law, but this provision has also been endorsed by the Constitutional Court (although with very important nuances, which we point out below).
North Dock, Melilla.
This legislative setback in terms of Human Rights cannot and should not be used by the Spanish government to reject any person who has entered Spanish territory through the cities of Ceuta and Melilla (as our colleagues from No Name Kitchen in Ceuta have been reporting over the last months). In fact, one could question the application of both the provision of the law and the decision of the constitution to this specific case, since they are cases in which third country nationals intend to enter Spanish territory by swimming (and not overcoming the border containment elements, i.e., the fence), since in such a situation there are no such containment elements, they have not jumped any fence.
Finally, the ruling of the Constitutional Court very clearly states the need to ensure that these border rejections are carried out with three guarantees: individualized application, preservation of full judicial control and compliance with international obligations on asylum and human rights. However, these guarantees are difficult to ensure in situations of rejection at the border, as stated by Judge María Luisa Balaguer Callejón in her dissenting opinion to the judgment, where she points out that the provision of "paying special attention to the categories of particularly vulnerable persons is clearly insufficient since it is not explained how compliance with these obligations can be made effective in the absence of a procedure developed with minimum essential guarantees", highlighting the "ignorance of the situations experienced at the southern border" of her colleagues in this judgment.
In conclusion, it can only be maintained that the return and transfer ipso facto to the Moroccan authorities that was carried out last week by the Spanish Civil Guard, without the slightest intention of carrying out the required individualised examination of the migrants (including two minors) and without any kind of procedure, once they were in Spanish territory, lacks legal support and is a breach of the most essential rules of international human rights law. It is another example of the intensification of migration control in Europe that we are witnessing in Ceuta and Melilla, where the rights of migrants are being subjected to serious violations.