The Spanish Borders on the Cusp of the New European Pact on Migration and Asylum

Forum on the new EU Pact on Migration and Asylum in light of the UN GCR

Contribution by Iker Barbero, University of the Basque Country (UPV-EHU) and Ana López-Sala, Spanish National Research Council (CSIC)
2 October 2020

1. Hard times for asylum in Europe

On February 13, 2020, the European Court of Human Rights made public its ruling on the case of N.D. and N.T. against Spain, by which it resolved the appeal against the previous ruling of October 3, 2017, of the same court. In contrast to the ruling handed down at first instance, among other relevant issues (such as the fact that, in view of the undefined concept of “operational border”, the border fence must already be considered Spanish territory and therefore subject to the jurisdiction of the ECHR), the Grand Chamber ruled in favour of Spain, that Article 4 of the Protocol to the Convention is not applicable to this case (two African boys who were intercepted trying to jump the border fence in Melilla and were immediately returned to Morocco without any procedure for expulsion, much less the option of applying for asylum) since it was the applicants themselves who placed themselves in an illegal situation by not using the means of access established by law, such as applying for asylum at an embassy or border post.

This ruling represents a regression in the defence of basic rights by conditioning recognition of those rights of situations involving merely administrative (non-criminal) conduct. It also reveals a paradigmatic shift in Spanish and European approaches to border control and the fundamental rights of migrants and refugees.

Spain, like other countries on the southern border of Europe, has been practicing this type of summary expulsion[1] for years, in full knowledge that Morocco is a country where the violation of the rights of migrants is manifestly systematic. In addition, the fact remains that certain people cannot materially obtain protection in a consular delegation because Spain has not wanted to by-law develop the process.[2] Even worse, many report being prevented by Moroccan police from accessing the international protection application offices in Ceuta and Melilla for no other explainable reason than their origin or skin colour. Forced to jump a deadly border fence or venture out on a dangerous sea crossing, these acts of desperations are the result of the consolidation of a specific model of border control and outsourcing policies. These policies are in line with what has been called “a contained mobility approach” in which an erosion of legal guarantees and the protection of migrants and refugees can be observed.

Migration and Asylum policies in Europe are currently at a crossroads. How they will be developed will largely be determined by the contents of the New Pact on Migration and Asylum[3]. The content of the New Pact reveals some of its fundamental principles:

Firstly, there is an emphasis on external borders as physical and procedural processing areas (including rapid identification and registration) where deportable irregular immigrants would be distinguished from refugees.

Secondly, there is a clear commitment to promote “effective” and “rapid” mechanisms at the border for the containment, identification and return of migrants classified as irregular or those whose applications for protection are rejected.

Thirdly (and linked to the previous one), there will be a focus on strengthening the agreements with third countries through extended and broad-ranging partnerships that incorporate readmission and return procedures.

These guidelines suggest that the “borderization” of asylum in the EU, along with the widening of externalization, will be the cornerstones of a policy whose objective of effective return will be a key element of future management. Content aside, most troubling perhaps is that the EU, or specifically some of its member states, seem to be obsessed with controlling and immobilizing the “unauthorized secondary movements”. There is no doubt that this will guide the new European migration and asylum management in future times.

From this starting position, is it possible to articulate the objectives of the New Pact as safeguarding the fundamental rights and legal guarantees of migrants in need of protection? Based on a brief analysis of the most recent approaches to migration and asylum management in Spain – in which many of the possible measures provided for in the Pact are being implemented – it could be asked whether contained mobility is already the operative paradigm.

2. Migration flows and asylum seekers across the border

Spain’s response to immigration and asylum has largely been shaped by its status as the EU’s southwest border. According to official data, over the last twenty years more than 360,000 people have arrived on the Spanish coast and in the cities of Ceuta and Melilla, with historic highs in 2006 and 2018, when Spain became the main destination country. Since 2018, in addition to the arrival of a substantial number of migrants from African countries including Guinea, the Ivory Coast, Senegal and Mali, the most significant increase has been observed in proportional terms of nationals from Maghreb countries, with Moroccans being the most numerous nationality in 2018 and 2019 and Algeria in the first half of 2020. Nationals from Morocco, Algeria and Tunisia accounted for nearly 30% of total arrivals in 2018, a percentage that rose to 59% in 2019 and fell slightly, although it remained at this high level (54.4%), in the first half of 2020, a year during which arrivals held steady despite the health crisis and border closures caused by COVID.

Moreover, the dynamics of asylum have manifested different patterns in the Spanish case. After decades in which the number of applicants was far below that of other European receiving countries (between 1998 and 2014 they did not exceed 1.5% of the EU total), during the last five years there has been a major increase, reaching a historic high in 2019 (with 118,264 applications, accounting for 19% of the European total). That year, Spain was the receiving country with third highest number of applications, behind only Germany and France.

In spite of the staging of actions to contain and deter migration on the southern border, which Nicholas de Genova refers to as a “spectacle border”, what we have described as a “pattern of territorial deviation of asylum” in the Spanish case is surprising (López-Sala and Moreno-Amador, 2020). At present, most applications are submitted by nationals of Venezuela, Colombia and Central American countries who, after arriving via international airports, make their applications mostly within the territory (up to 97% of Venezuelans, Hondurans and Nicaraguans and 98% of Colombians). In contrast, in 2019 only 6% of asylum applications were made at border posts where Syria stands out as the majority nationality. On the other hand, among the people arriving by sea, generally clandestinely by boat, nationals of sub-Saharan countries apply for asylum when they are already within Spanish territory, and to a lesser extent at border posts. However, nationals of Morocco and Algeria, are forced to apply for international protection when they are in containment and expulsion areas such as the Detention Centres (CIE), up to 44% and 41% respectively in 2019. The explanation for this anomalous and somewhat Kafkaesque situation will be provided below.

3. The externalized border

Spain’s main (and indispensable) partners in the control of migratory routes to its territory are Morocco, Senegal and Mauritania. In October 2018, Spain donated to Morocco, 108 vehicles and computer equipment worth 3.2 million euros. Between 2019 and 2020, Morocco received 30 million euros from Spain, to be paid from the General State Budget (Council of Ministers of July 19th, 2019), which were included in the 147.7 million euros from the European Emergency Fund for Africa, as well as 389 million Euros from new cooperation programs of the European Commission (December 20th, 2019), to improve and upgrade the fleet of vehicles with which to reinforce its border control and thus repress irregular migratory flows towards Europe.

In this sense, the control of the maritime border has undergone significant changes in recent years, especially after the increase in flows in 2018 and the adoption of new collaboration agreements on migration control between the two countries after the Socialist party’s return to government in June 2018. To begin with, the decrease in arrivals to coasts since the beginning of 2019 has been the result of the increased surveillance of departures carried out by Morocco on its coasts and in the camps near Ceuta and Melilla, where according to reports by human rights organizations, no violence has been spared.

In addition, there have been important changes in Search and rescue (SAR) action protocols and, therefore, in Spanish rescue practices in the Strait of Gibraltar and the Alboran Sea, which reveal the trend to outsource rescue operations, with Spain providing maritime resources to Morocco, including infrastructure and training. Unfortunately, in practice this policy change has led to greater danger and even multiple shipwrecks and numerous deaths. In short, it represents an abandonment of the guarantee of rights such as international protection and others as basic as the right to life.

Thirdly, while previously the management of maritime arrivals at the Southern border was carried out by detaining all migrants in the various detention centres (CIEs) dispersed throughout Spanish territory, or in the Temporary Stay Centers for Immigrants (CETI) in Ceuta and Melilla,[4] there has been a collapse of these two types of centres. The high number of arrivals and the bureaucracy and time involved in decreeing internment in a CIE or alleviating the overcrowded CETIs has led to the de facto creation, that is, without any specific legal regulation, of new containment and rapid processing mechanisms called Centers for the Temporary Assistance of Foreigners (CATE, in Spanish) in 2018.

As with the Hotspots created by the European Commission for Greece and Italy, these centres are located in the ports where people rescued or intercepted at sea are disembarked directly into fenced enclosures, consisting of prefabricated modules that always show clear signs of being an area of detention. They are detained there for a period of 72 hours (the maximum legally allowed time) while the Spanish National Police (and FRONTEX) identify and register them (in EURODAC).

The “humanitarian border” ingredient is provided by certain organizations that deliver a range of services such as medical care and first aid (Red Cross), information on international protection (UNHCR/ Spanish Commission for Refugees CEAR) and legal assistance (immigrant legal aid services provided by the bar associations). As mentioned earlier regarding these centres, it should be noted that the trend has been to selectively process arrivals by nationality and to transfer those mainly from sub-Saharan countries, while Moroccans and Algerians are either expelled immediately or transferred directly from the rescue boat to a CIE.

Similarly, with regard to the application for international protection, the CATEs are not authorized to formalize the application; however, after advising their lawyer (when there is one) that they wish to apply, the individual must formalize their application in the territory after they are released. This explains why migrants from sub-Saharan countries are already applying for asylum in national territory while the Maghrebi are forced to do so in the CIEs.

4. The reinstatement of internal borders

Although there has never ceased to be some kind of border control among EU member states, in recent years we have witnessed a widespread and permanent reinstatement of police controls at internal borders (Barbero 2018). In the last five years, the northern and central states of the EU have invoked the mechanism for re-establishing internal border controls provided for in the Schengen Borders Code four times, more than in all previous years since its inclusion in 2006. Leaving aside that these movements have been intermittently affected by the recent border closures caused by the COVID pandemic, the general argument for re-establishing internal border controls has been what is referred to as “secondary movements” of migrants and refugees, with indirect references to security and terrorist threats, as in the case of France (Barbero 2020)[5], although recently these movements have also been affected by border closures caused by the COVID pandemic.

The fundamental element of this trend towards internal border closure is reflected in the interpretation and application of the Dublin Regulation regarding the notion of the “first country of entry” being responsible for examining an asylum application. In this regard, it is essential to refer not only to the 26,694 applications submitted to Spain mainly by France and Germany in 2018 and 2019 (Spanish Ministry of the Interior), but also to the bilateral agreements between Spain and France (2002) and Germany (2018) for the immediate return (simplification of the procedures and shortening of the time limits relating to transmission and the examination of requests). In other words, without enough due process of migrants and asylum seekers firstly registered in Spain and later caught in transit in those countries, there are obvious implications for the rights to individualized processes of international protection.

5. Spain’s position on the new Pact

All of the above helps explain why Spain, in contrast to the position of Austria and the Visegrád group countries, while accepting certain mechanisms of pre-screening border procedures for asylum seekers and migrants, has insistently defended the principles of strong solidarity and shared responsibility in European asylum policy and the establishment of a mandatory system of resettlement quotas.

In a joint letter with France, Italy and Germany addressed to the Commission in April 2020, the Spanish government advocated for the establishment of a Search and Rescue Solidarity Mechanism, which would also elevate to EU level the distribution of arrivals after sea rescue, a decisive issue for migration management given the geography and the intensification, again, of arrivals to their coasts (in 2020 especially to the coasts of the Canary Islands).

In the same letter, Spain, together with the other signatories, also proposed implementing a mandatory pre-screening procedure (including registration, identification and security and medical checks) at the external borders and advocated the establishment of an updated and extended catalogue of clauses for declaring the inadmissibility of applications. The use of mechanisms for rapid resolution of asylum applications at the border has had a certain tradition in Spanish processing procedures, as Spain employed an “inadmissibility procedure” during the first decade of this century.

Likewise, the most recent implementation of these Centers for Temporary Assistance of Foreigners (CATE) in different segments of the maritime border is an instrument aimed at establishing infrastructure and procedures for rapid identification-processing and channelling of itineraries. This letter also supported the strengthening of agreements with third countries as part of the reformulation of asylum policy (as alluded to above, Spain has a long tradition of outsourcing migration control to third countries) and upheld the need to prevent secondary movements as one of the objectives to be addressed. It is not insignificant to mention that these secondary movements, with their intensification since 2017, have affected the bilateral Spanish-French migration agenda.

However, the letter also noted the necessity of creating a fair system based on responsibility and solidarity where the disproportionate burden of being a migration arrival country should be shared by all Member States. It is here where the Pact has probably failed the needs of Spain, but also Italy, Greece, Malta and Cyprus.

In conclusion and in light of the facts and policies presented here, if the Pact lumps refugees and irregular migrants together, and even equates their restriction of mobility rights, we predict that the Spanish migrant and asylum system will have no problem assuming and incorporating the Pact, because it is precisely the model that has been implemented on the Southern border for the last 20 years.

However, if flexible solidarity means internal outsourcing, that is, that Northern and Eastern countries may choose to participate in return partnerships or capacity/operational support and not fully relocation, while Southern countries necessarily have to take charge of the burden of the registration and asylum procedures, there is a high risk that places such as the Canary Islands or Andalusia (as Lampedusa or Lesbos) may become “limbo-zones” where people are contained, and rather inevitably, their rights endangered.

[1] Spanish police regularly implement a “push-back” approach to expel migrants from Spanish territory (often referred to as devoluciones en caliente in Spanish). This consists of immediately turning over people who have been intercepted trying to jump external border fences to the Moroccan police or simply abandoning them on Moroccan soil. Because the expulsion is immediate, the migrants have no possibility of applying for protection or claiming any vulnerable situation, such as being a minor or a victim of trafficking. Since 2015, these practices have been regulated by Spain’s Public Safety Law, pending the resolution of the Spanish Constitutional Court on the constitutionality of these practices.

[2] Currently, only the modalities of family extension and reunification are possible (Art. 38 Asylum Law), which represents 0.67% of the applications.

[3] See https://ec.europa.eu/info/publications/migration-and-asylum-package_en

See also Carrera, S. (2020), Whose Pact? The Cognitive Dimensions of the New EU Pact on Migration and Asylum. ASILE Policy Insight ASILE Project.

[4] The CETIs, created in 1999 (Melilla) and 2000 (Ceuta), are dependent on the Ministry of Migration, Labor and Social Security. They were conceived as mechanisms for initial provisional reception, to provide services and basic social benefits to migrants and applicants of international protection who arrived at these cities, while they were being identified and provided medical care and before being transferred to the peninsula.

[5] See Barbero, I. (2020) “A ubiquitous border for migrants in transit and their rights: analysis and consequences of the reintroduction of internal borders in France”, European Journal of Migration and Law 22, p. 366–385. See: https://brill.com/view/journals/emil/22/3/article-p366_3.xml